Give Diversity a Chance

By Kevin D. Williamson

Sunday, November 21, 2021

 

Roe v. Wade is, by American standards, an ancient controversy — one that seems likely to be resolved in the near future in a way that progressives are not going to like.

 

There is some poetic justice in that.

 

Abortion wasn’t much of a national issue until abortion-rights advocates made it one, the matter having previously been regulated on a state-by-state basis. Progressives, who think of society as one big factory to be managed scientifically according to Taylorist principles, instinctively recoil from genuine diversity and the spontaneous heterogeneity of organic society. They have long sought to impose standardization on American life, homogenizing everything from labor markets to education to abortion rights. For years, their principle instrument of social homogenization was the Supreme Court. One of the great successes of the conservative movement has been effectively closing off that option for the Left, which was so discomfited by the loss that progressives turned hysterically toward self-discrediting court-packing schemes.

 

Abortion is an old fight. But the oldest argument about the government of the United States remains, after all these years, unresolved: What is it?

 

Before there were Republicans and Democrats, there were Federalists and Anti-Federalists. They were divided on many issues, most notably the proposed constitution of 1787. The fundamental split was between those who wanted a more coherent national government and those who wanted to preserve the United States’ — the word is plural — original character, that of a union of states. And this division has echoed through the ages: The crackpot libertarian theorist Murray Rothbard, who loathed the Federalists and described “Generalissimo Washington” as the original enemy of American liberty, dreamed of abandoning the Constitution and returning to the Articles of Confederation.

 

The epigones of the Federalists in our time would like to declare victory and consider the matter settled. In their view, the national government of the United States is like the national government of France, with Washington owing Austin or Sacramento hardly any more deference than Paris owes to Besançon or Strasbourg. Conservatives for some time couched their enduring Anti-Federalism in the erroneous language of “states’ rights,” but states do not have rights — states have powers. In fact, our constitutional order is designed in such a way that states have most of the powers. The federal government has certain enumerated powers touching questions that are inescapably national in character — war, international trade, etc. — with the Tenth Amendment articulating the arrangement: “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.” The Tenth Amendment may not make the lines perfectly clear, but it does make it undeniable that there are lines.

 

Taking the doctrine of enumerated powers seriously would have far-reaching consequences for the federal government — the people who call themselves “constitutional conservatives” are in their way more radical than the radical libertarians.

 

Here, we need a little nomenclatural hygiene: When conservatives today talk about federalism, we are talking about something related to the Anti-Federalist sensibility, emphasizing the character of the United States as a union of states, each sovereign within its own borders, rather than a unitary national state such as that of France or China. What such federalism should mean as a practical matter is that important social questions that are not international in nature should be managed mainly by the state legislatures. For the conservative federalist in 2021, ending the Roe regime would mean not a national prohibition on abortion but turning the question over to the state legislatures with the understanding that the democratic settlements that are reached in Utah and Oklahoma will be different from those reached in New Jersey and California.

 

The notion of incorporation of the Bill of Rights (mistaken, in my view, but that is a cause so near to being well and truly lost that insisting on it amounts to an eccentricity) and treating it as a limit on state governments rather than on the U.S. government alone complicates things, but there is no constitutional or political reason that firearms regulation, to take one example, has to be precisely the same in Manhattan as it is in rural Nevada. Just as local laws vary when it comes to First Amendment-related issues such as organizing public rallies and parades or operating a media company, there are a number of quite different local legal arrangements that would all be consistent with the Second Amendment.

 

There are 128 million households across 50 states — ideological fanaticism is the only reason to believe that each and every one of them must be subject to a completely uniform regulatory environment with that homogeneity enforced at the point of federal bayonets.

 

Even on very consequential questions such as abortion, conservatives with a healthy respect for federalism are willing to give authentic diversity a chance. Progressives should think about joining us in this.