There are some on the right who now the “Dobbs” has overturned Roe v. Wade”, think this is time for National Legislation regarding abortion, and that we, as Americans need to take action to do just that. Much like the Left (whom many seem to abhor; it is easy) they seem to desire to impose their view of “proper law” upon all Americans, rather than leave it to the States. For Americans who have grown up in these recent years one can see why. They have little appreciation for States Rights because until recently, very few people or institutions did. I am philosophically opposed to such an approach and I believe the Founding Fathers would agree with me. (Full disclosure I am a White Male property owner just like they were).
America is a Constitutional Republic, not a Democracy. We re set up to honor the obligations to represent the citizens at large via the House of Representatives. US Const Art I Sec. 1. The Constitution also protected the States and their respective citizens with the Senate, where each State is equally represented by 2 Senators. US Const Art I, Sec 3. This prevents the larger States from overpowering their smaller neighbors at the Federal level. In fact this principal was so important that until the 17th Amendment, in 1913 Senators were selected by the State Legislature rather than direct election by the people. Additionally, the 10th Amendment states” 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”. Thus, the Founders intended the States to play a crucial role in the governance of their respective citizens.
The power of the State to operate independently was initially limited by both Congress and the Supreme Court. Congress could pass laws that affected the States pursuant to its obligations under the Constitution and the Supreme Court could oversee State’s Legislation to ensure it was consistent with our Constitution. States we tasked by default with enforcing its specific laws, the determination of the status of it citizens (who was married, divorced, widowed, paternity which also set up inheritance laws) as well as who owns property and the description and location of that property. Armed Combat determined States could not withdraw from the Union and the termination of the odious practice of Slavery was determined by brute force not legal effort. As the Nation evolved the 10th Amendment was often called “a trueism” by Liberal Law Professors (almost all of them). That meant it was there but had no effect. (Hint, it is on a comeback tour).
A National Highway System, expanding Federal Government and now 24/7 media have allowed rural, suburban and city dwellers access to the same information. Has that made us more United? I think not. We live in separate Americas, some by geography but more by political philosophy. These diverse opinions of what is right, moral and just, should not be nationally mandated. Roe was a perfect example of a Law that interfered with the State’s Right to make a legal determination of its citizens. The Left loved it because they knew they could not pass it by Legislation. Now some on the Right want to do just the opposite. It is no more correct for the Right than for the Left.
Our freedom of Association (1st Amendment) protects us from government overreach as does our right to privacy (which I find easily under the 1st Amendment but the Supremes found it under the penumbra of the 1st). If like minded citizens of State “A” enact legislation that is otherwise Constitutional that’s fine. If I don’t like it, I petition my local officials and attempt to change it. I don’t need, nor do I want outsiders coming in to force the change. Do I trust the National Government? Not in the least. Daily we can see the corruption in the Executive Branch (Covid, DOJ, FBI, IRS, Executive Agency overreach) and Legislation (remember driving 55, raising the drinking age to 21, Obamacare, Biden’s Build Back Better). While I don’t trust my local government all that much,I can reach out and touch them much easier and it is easier to petition them for change, if necessary.
I admit it I am a Libertarian, Originalist, not a Conservative Republican. I do not trust the Democrat Party and even less their minority hire Supreme Court Justices. I will not endorse National Legislation that compromises the 10th Amendment. It is bad practice and left to their own desserts the Left would destroy America without it. So long as the Several States operate within the bounds of the Constitution, each State should be able to create and enforce its own laws. Now let’s get rid of that terrible decision that changed the definition of marriage! That’s what you get with National Laws and a misguided Supreme Court
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The only “legislation” that is constitutional is an amendment to the constitution that declares an unborn child is a person. Many states have in their homicide statutes a definition of person that includes an unborn child which means that if you kill an unborn child, you will be charged with criminal homicide, but there is an exception for abortion.
If the premise of opposition to abortion is that the unborn child is a person entitled to life, then allowing a each state to determine when the unborn can be aborted or killed is constitutional but not moral. Allowing states to make this decision is analogous to when courts and states ruled that black slaves were not persons within the meaning of various laws.
A court could decide that an unborn child is a person within the meaning of the 14th amendment entitled to protection but that would be viewed as judicial legislation.
I believe you are correct and that is why this issue will not be settled by the states through the 10th Amendment. In 1860 we had a pro-slavery party and a pro-freedom party. Today, we have a pro-abortion party and a pro-life party. The right to life is declared in our first legal document founding this country, The Declaration of Independence. If life is not a right, then neither are liberty nor the pursuit of happiness (the ability to legally pursue your dreams without gov’t inteference). The embryonic stage is just one early stage of human development, therefore, making the embryo a human with the same rights as you and I. We are at loggerheads and this situation can only be fixed one of two ways, a Constitutional Amendment or war. The pro-abortion party will not quit until abortion is legalized into the 10th month and the pro-life party will not quit until all abortions are stopped. This is not a situation that can be fixed with a simple, political solution, unfortunately. Contrary to what the Left would have us believe, all laws legislate morality. The Left is devoid of morality because it is devoid of God. This question of protecting innocent human life is not yet settled.