Return to federalism

Those who have applauded the Supreme Court’s Dobbs ruling claim that an important public policy issue has been appropriately returned to the democratic process (even though many of them also praised the court ruling in New York State Rifle & Pistol Association v. Bruen, which only a few days earlier struck down a New York gun-control law that was the consequence of the democratic process in that state). Those who have condemned Dobbs have done so on the grounds that rights (in this case a claimed right to abortion) exist beyond the reach of the democratic process (even though they also condemned the ruling in Bruen which reflected such thinking by upholding the Second Amendment, apparently without recognizing the inconsistency). There are, of course, differences between the right to bear arms and the right to an abortion (the former being, again, an explicitly stated if not necessarily unbounded right in the Constitution, the latter one merely and belatedly inferred from its “emanations from penumbras”), but the tendency is similar–to shift venue from court to legislature when it suits and vice versa. A bit lost in the shuffle is the fundamental nature of the relationship between “rights” and “democracy,” in the sense that whatever rights we claim are “unalienable” and endowed by our creator in theory can only be realized in practice when codified into law by legislative bodies. “Rights” in natural law remain purely aspirational until manifest in positive law (including that found most importantly in “parchment barriers” called […]

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