New Federalism and Justice in Decline

A Year of Essays: January 5, 2022

On November 7, 2020, when networks began calling Biden as the winner of the presidential election, I knew we were in for a contentious transition. I think I quipped: “A lot can happen in 74 days.” Thus, I was simultaneously shocked and unshocked by the January 6th Insurrection last year. Now, a year later, we are studying how the attack was coordinated, who was culpable, and whether that partisan faction foments more unrest.

Julie Novkov writes in today’s Washington Post that though many think this toxic partisanship could lead to civil war, she takes a circumspect view, likening this period to the post-Reconstruction compromise in which the individual states would “develop and implement policies based on the world views of those who control their dominant parties.” She references a recent study by John Dinan about the institutionalization of state resistance to federal directives, or, as Novkov puts it, a “newly revitalized federalism,” and suggests that this “retreat of national institutions” would be better than a shotless war or threats of secession. She may be right. But what does this mean for our nation?

Texas’s recent SB8, which both bans abortion after the detection of a fetal heartbeat and deputizes citizens to sue any party performing or facilitating an illegal abortion, offers an example of giving states latitude. Though SCOTUS has sent the federal government’s lawsuit over SB8 back to the Fifth Circuit, it is clear that 1973’s Roe v Wade decision is under attack.

In the scope of this new federalism, state citizens elect their leaders who, in turn, legislate and judge based on local ethics and morals, despite what the Constitution says. Does this mean a woman who is a citizen of Texas would be breaking the law if she travels to another state to have an abortion and returns to Texas? Does this mean that supporters of women’s right to abortion should move to states where that right has not been legislated away?

Historian Heather Cox Richardson, in her almost-daily Facebook postings on history and contemporary American politics, points to Roosevelt’s New Deal as the beginning pivot from the post-Reconstruction period of states’ rights to more inclusive protections for all. This was an era of federal regulation in order for the U.S. to be a more perfect union. She also claims that Reagan and the Movement Conservatives have used culture wars and the promise that the rich can provide as long as the government gets out of the way to thwart that more perfect union.

Life is indeterminant and contingent. We keep trying to find the “right” way to move us forward. Rules and moral laws must always remain flexible, open to interpretation, and not subject to a majority vote. An anonymous blog posting from 2010 noted, “Rights and liberties trump public opinion; you can’t put the rights of a minority at the mercy of the majority’s vote and call it just.” The one thing that is true with this new form of federalism: justice is in decline.

Novkov, Julie. “Some say the U.S. is headed toward civil war. History suggests something else.” Washington Post, January 5, 2022. https://www.washingtonpost.com/politics/2022/01/04/jan-6-civil-war-democracy/

Dinan, John. “The institutionalization of state resistance to federal directives in the 21st century.” The Forum, September 21, 2020. https://doi.org/10.1515/for-2020-1001