Posted by
Andrews on Tuesday, November 11, 2008 7:19:47 PM
It has
been a while, but Best of the Web repeats my quote almost verbatim.
When writing about abortion,
I said (when describing my ideal presidential candidate):
We have become so used tot he idea that abortion is a federal question
that neither side is willing to return the question to the states. Some
pro-life proponents pay lip service to states' rights, but only because
they know most states are more conservative than the Supreme Court, but
they seem to do so only as a stop gap measure until they can establish
a conservative majority on the court. Both sides seem to be convinced
that the proper place to decide the abortion question is on the
federal level.
On the other hand, I think that abortion is, and should remain, a state
question. First, and foremost, because I believe federalism is the
proper form of government for the United States (see below). However,
even if one does not agree with that belief, there are two practical
reasons to leave the question in the hands of the state. First,
adopting a single federal solution tends to leave more people unhappy
than having 50 different state solutions, and that disappointment makes
for a much more acrimonious debate than is necessary. Second, and much
more important, whichever side wins the federal debate wins a very
insecure victory. As it takes only 5 justices to change course for the
entire nation, any victory at a federal level is ephemeral at best.
Now, I will grant that leaving the decision up to the states in
unlikely to ever give either side a complete victory, even if there is
nationwide movement toward one side or the other, it is likely a few
states will remain stalwart champions of the other side. However, in
many ways that is a good thing, as, for those who view this question as
the preeminent political question have the opportunity to move to a
state which matches their beliefs. So, rather than our current
situation, where a single nationwide policy leaves huge numbers
dissatisfied, having a number of state solutions, ranging across the
spectrum of possible answers, is likely to leave most citizens content
that their views are represented.
And earlier, when
writing about the benefits of federalism in the question of abortion:
Many on both sides argue that abortion either causes or cures any
number of social ills. The pro-choice side argues that making abortion
illegal will increase child abuse and neglect or will lead to harmful
illegal abortions. The pro-life side argues that, besides being
immoral, abortion increases societal breakdown in general, increases
promiscuity, causes a general indifference towards harming others, and
so on. If we return to the 50 states the right to decide for themselves
whether or not to criminalize abortion, we will have a chance to
determine if either side is correct.
However, in the abortion
case, there is another benefit. Abortion was decided on a federal level
while the issue was still quite unsettled, leaving us with a bitter
battle on the national level. By returning it to the states, we gain
two benefits. First, those who care can move to a state which follows
their own beliefs, rather than having to live under a single federal
regime with which they may or may not agree. Second, the battle will no
longer be a single winner-take-all fight, but will become 50 little
arguments over abortion, causing a lot less acrimony and allowing for a
much less angry nation debate on the question. Perhaps this will one
day lead to one side prevailing in all 50 states, but if so, it will
happen because of a national consensus, not because one side got 5
votes on the supreme court.
And now,
Best of the Web, in writing about having the voters or legislature decide about abortion rather than the courts, writes:
Leaving such matters to the democratic process spares the country from
the bitter and divisive politics that have arisen over abortion since Roe v. Wade.
It allows the contending sides to find compromises tailored to local
conditions rather than impose a one-size-fits-all judicial resolution.
And it allows the side that does not prevail to remain involved in the
process, giving it an incentive to find arguments that are more
persuasive to the public.
And so, once again, I anticipated the argument of the WSJ, in this case by nearly a year.
POSTSCRIPT
I also discussed this in more general terms in my
earlier essay on judicial activism and in a
more recent take on the same subject. It is also explained in very general terms in my essays "
My Vision of Government" and "
My Vision of Government Part II".