Dobbs is 'States' Rights' on Steroids

In a thought-provoking analysis, Jamelle Bouie of the New York Times observes of the Dobbs decision overturning Roe vs. Wade:

Interestingly, this image of a quasi-military "policeman" was also tagged with such terms as "Pandemic, "Covid," and "Omicron." (Image by Alec Favale, via Unsplash, license.)

One thing to recognize about the scope of states' power from the founding to the Civil War is that it was broader and more expansive than we tend to recognize under modern conceptions of constitutional law. States, as most Americans understood them at the time, were governments of general jurisdiction with far-reaching police powers that gave them almost total discretion to regulate internal affairs. The federal government, by contrast, was a limited government of enumerated powers -- a government that could take only such action as allowed by the Constitution.

The police power, the historian Kate Masur notes in Until Justice Be Done, "was grounded not in the idea that a government's duty was to protect individual rights but, rather, in the conviction that government's most important obligation was to secure the health, safety and general well-being of a community." [link omitted, format edits, bold added]

Re-read that last sentence.

I can't count the number of times I have read news articles or opinion pieces that pertain to individual rights, suspected that the term rights appears nowhere in the piece, and confirmed my suspicion with a negative result by searching for the term.

Here, we not only have that near-forgotten word, but the whole phrase. There is promise!

Bouie comes tantalizingly close to saying what I wish someone would say -- or would have said when the "police power" was used to excuse the wholesale violation of individual rights during the pandemic: The police power of the state, to the degree that it violates individual rights, is as contradictory to proper government as slavery was.

That connection is not lost on Bouie, who brings it up, but he does not note the contradiction explicitly.

I am no legal scholar, but I did some reading about the police power during the pandemic. Back then, I noted:

... I am very uncomfortable with the vagueness that the legal idea of police power has had from its inception and the fact that (predictably for that reason) it gets abused. Indeed the FDA, which the authors cite as an anodyne example of government regulation (which I gather is one sense of "police power" as it is used today), would appear to be a disastrous abuse of late.

Surely, there are or should be limits on the police power, if it is at all a legitimate concept...

That said, Bouie comes to a conclusion I largely agree with:

For as much as it is important to defend reproductive rights -- and other key rights -- on a state-by-state basis, this is why it is also important to defend and protect them at the level of the federal government. The goal is not just to secure rights but also to restrain the states.

If the Constitution does not restrain the governments of the individual states as much as it does the federal government, it is useless as a protection of our individual rights.

As more states start criminalizing interstate travel (e.g., for the purpose of helping a minor get an abortion), we are starting to see exactly what that means.

-- CAV