Dobbs and the Renewal of Federalism

Conservatives throughout the country and the world have celebrated in the aftermath of the Supreme Court’s historic decision in Dobbs v. Jackson Women’s Health Organization. If the ruling holds, it will certainly become one of the “landmark” rulings in the Court’s history. In his Public Discourse essay on Dobbs, Michael Stokes Paulsen concluded that “Dobbs may be the most important, magnificent, rightly decided Supreme Court case of all time. It is restorative of constitutional principle. It upholds the values of representative, democratic self-government, and the rule of law, at the same time that it supports the protection of fundamental human rights.” Paulsen adds that Dobbs is also potentially “a positive, transformative moment for American society,” laying “the legal groundwork for social and moral change.”

Everything that Paulsen says is true: the potential effect of Dobbs is large. In addition to the millions of lives spared, the decision may also be an early step toward restoring federalism, which has been steadily eroding for the past century. America needs a strong sense of the constitutional federalism that Dobbs portends in order for abortion to remain a state-level issue. Two concepts—Sphere Sovereignty and Subsidiarity—can buttress federalism, even after more than a century of centralization with unaccountable judges and bureaucrats making decisions that—constitutionally speaking—are the responsibility of the people themselves.

Federalism

What are the key components of the Founders’ constitutional federalism? The first three articles of the Constitution lay out the fundamentals of the separation of powers, granting different kinds of political authority  to the legislative, executive, and judicial branches of the national government. In the Tenth Amendment, powers not granted to the nation are reserved for the states. In Federalist 45, James Madison explains: “The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.”

In Federalist 51, Madison elaborated further, explaining that the evil of a monolithic, dominant, oppressive interest is best avoided by the breaking of society into “so many parts, interests, and classes of citizens,” resulting in the “multiplicity of interests” and “multiplicity of sects” required for the security of civil and religious rights. These “subordinate distributions of power” are necessary because government, that “greatest of all reflections on human nature,” must be supplied “opposite and rival interests,” to counter its “defect of better motives.” Distributing power both vertically and horizontally keeps rival factions from gaining too much control. With states regaining authority to legislate on abortion, rival opponents can no longer impose a uniform policy on the whole nation.

But as mentioned earlier, federalism has lost ground for many decades. Our current consolidated, statist political order has led to fewer and more remote decision makers and an elitist system in which fewer people control important decisions that affect their lives; in short, less democracy. This kind of system is worlds apart from the one envisioned by the Founders. And this is why the constitutional transformation initiated during the Progressive Era, launching the career of the “living Constitution,” required a transfer of effective power away from the people’s representatives in Congress and state legislatures, and toward less accountable (or unaccountable) bureaucrats and judges.

Sphere Sovereignty

For abortion to remain a state issue, American political culture needs to rehabilitate its commitment to federalism. In the remainder of this essay, I want briefly to discuss two principles that are essential for rehabilitating and sustaining  federalism (and thus Dobbs): sphere sovereignty and subsidiarity. Sphere sovereignty was most clearly articulated by former Dutch prime minister and neo-Calvinist theologian Abraham Kuyper in his Stone Lectures, a series of lectures given at Princeton Theological Seminary in 1898. Subsidiarity—an important component of Catholic social teaching—was given its clearest and most authoritative exposition in Quadragesimo Anno, issued in 1931 by Pope Pius XI.

Sphere Sovereignty, according to Kuyper, is grounded on Aristotle’s conception of man as zoon politikon. This is the notion that man is a social animal who institutes not only governments but also civil associations, each of which possesses its own natural structure of authority ordered to its own particular end (e.g., families, churches, schools, libraries, museums, literary and scientific organizations, and so on). These institutions are free associations that are self-governing by nature and thus require liberty from external authority to flourish. In his Stone Lectures, Kuyper describes in rich detail these natural structures of authority: “Neither the life of science nor of art, nor of agriculture, nor of industry, nor of commerce, nor of navigation, nor of the family, nor of human relationship may be coerced to suit itself to the grace of the government.” In short, the less government has to do with these institutions, the better.

Sphere sovereignty is not the same thing as federalism, but both concepts provide fertile soil for the development of independent spheres of private activity. They do this by bringing more clearly to mind the idea of function. For example, when it comes to the separation of powers, legislating is distinct from enforcing, interpreting, or applying the law, and thus requires different skills. Or with federalism, regulation of commercial activity in New Jersey is distinct from regulation of international trade, and so requires different practitioners with different expertise. When it comes to civil associations, running a family is different than running an institute, and so on. When the different spheres of life are sovereign, each is empowered to cultivate its expertise and manage its domain according to its competence.

Subsidiarity

Subsidiarity is a concept that can reinforce sphere sovereignty. According to subsidiarity, social, economic, and political functions are best performed by the lowest (most local) organizational level that can competently perform the function. The principle was strongly articulated by Pope Pius XI in the encyclical Quadragesimo Anno of 1931, Section 79, which states that “it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do.” This principle is applicable all the way down to the level of families and individuals. Subsidiarity is not just an abstract philosophical point; it complements federalism. As Andy Smarick  wrote in Public Discourse recently: “Indeed, we can see our structure of decentralized government as providing a framework for subsidiarity’s directions.” A political economy characterized by Sphere Sovereignty/Subsidiarity is also more closely attuned to American traditions and to the ideas and environment underlying the Founders’ Constitution than is today’s consolidated, centralized government and economy.

The connection between subsidiarity and sphere sovereignty is clear. While sphere sovereignty provides a wide space for private (i.e., non-governmental) decision making, subsidiarity guarantees more localized decision making within that space. Taken together, this means that there are more decision makers, more people having a say in how they are governed, more people in control of nature’s bounty, and better use of society’s resources; in short, more democracy in both the political and economic spheres. Sphere sovereignty and subsidiarity offer a healthy alternative to the ever-advancing concentration of power that I describe earlier.

Recovering Constitutional Government

We should celebrate Dobbs—but cautiously, for it is only the beginning of the project of constitutional restoration that needs to be done. If Dobbs is to stand, American society must move away from the stifling, tyrannical concentration of national power that we are experiencing now and begin a return to the balanced government of the Founders’ Constitution. When the original constitutional consensus came under attack by the Progressives, Abraham Kuyper and Pope Pius XI pointed the way back. Although their plea initially fell on deaf ears, it’s not too late to heed their teachings.

The story of the early Progressives who created the “living Constitution” that produced Roe v. Wade by stealth and subterfuge has been well told. As before, if America is destined to be governed according to the programs, policies, and priorities of the Left, it will not be the result of popular choice following vigorous, open, public debate involving the entire “multiplicity of interests” and “multiplicity of sects” characteristic of a healthy civil society. It will be the result of society’s capitulation to the “monolithic, dominant, oppressive interest” that Madison and the Founders feared.

Evil designs—such as laws allowing unlimited access to abortion—must be accomplished behind closed doors, in the dark, via stealth and subterfuge. They can never really be freely chosen. They must be imposed. Concentration of power is the surest route to the imposition of such designs, for which the Founders’ Constitution is the surest antidote. Sphere sovereignty and subsidiarity can help us return there.