In the aftermath of two momentous Supreme Court decisions last week on guns and abortion, emotions are running high and, indeed, starting to turn ugly.
Perhaps it is a futile suggestion, but could we possibly step back, take a breath and consider the court’s actions a small victory for federalism?
The Founders’ concept of government tried to put most decision making in the hands of the states and the people, limiting the federal government to specific, carefully spell-out duties.
For decades now, there have been loud complaints – either from the right or the left, depending on which side felt most aggrieved at any given moment – that too much power was in the hands of career bureaucrats, an ever-expanding administrative state and the Supreme Court’s “nine un-elected justices who serve for life.”
The court’s two decisions diluted that power at least a little.
In the gun case, the court merely struck down the “proper cause” required by some states for citizens to “bear arms” outside their homes, such as a demonstrable need for self-defense. For no other constitutional right, the court said, must citizens show a special need. Something is either a right or it isn’t.
Requiring a reason for any citizen to exercise a right is very different from preventing some citizens from exercising that right for a rational reason, such as having a felony record or a history of domestic violence or dangerous mental instability.
As the court itself has noted, in the words of Justice Antonin Scalia, the ability to bear arms is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Setting limits on those manners and purposes is properly left up to the states.
In the abortion case, the court did not “ban” the practice. It merely returned authority to the states that it had arrogantly taken for itself nearly 50 years ago in 1973’s Roe v. Wade. There was nothing in the Constitution, the nation’s history or its laws that justified the court taking over the issue, let alone acting as a super legislature and defining the conditions under which abortions were permissible.
Even liberal abortion supporters such as Ruth Bader Ginsburg called the Roe v. Wade decision foolish, and none of the dissenters in the current case could cite a reason for their position except Roe v. Wade itself. States had vigorously debated the abortion issue before 1973 and will resume doing so now.
Some states, under Roe’s influence, have gone to one extreme, approving even late-term abortions for any reason or no reason at all (and there was a failed attempt in Congress to go the same route). Perhaps some states, including Indiana, will be tempted to go too far the other way, outlawing all abortions, even to save the life of the mother.
Contact your legislators.
Indiana already has some of the most lenient gun laws in the nation and seems pretty much in tune with the wishes of its residents. But perhaps the General Assembly went too far last year in abolishing the requirement for a carry permit.
Contact your legislators.
Courts should consider the law and the Constitution. We should never demand they mirror public opinion. In our republican system, legislators aren’t required to follow the public either, but they do try to stay somewhat in step with it.
Keeping the decisions that most affect our lives as local as possible does not guarantee outcomes we will like. Indeed, the occasions when city, county and state units of government have been spectacularly wrong are too numerous to mention.
But those officials are most likely to know the challenges and opportunities experienced by their constituents, and citizens are in a better position to be informed about the issues and have a much better chance of making our case when public servants get it wrong.
We can’t fire the Supreme Court, and the bureaucrats and functionaries of the administrative state labor away in glorious anonymity. But when it comes to our elected officials, we can always throw the bums out, and the more we put in their hands the better off we are.
Leo Morris, columnist for The Indiana Policy Review, is winner of the Hoosier Press Association’s award for Best Editorial Writer. Morris, as opinion editor of the Fort Wayne News-Sentinel, was named a finalist in editorial writing by the Pulitzer Prize committee. Send comments to [email protected]