With the recent Supreme Court decision to overturn Roe v. Wade, the nation’s highest court has stated plainly that precedent has little legal bearing in decision making.
It is a sad new era, reflected in the dissent, in which Justices Stephen Breyer, Elena Kagen, and Sonia Sotomayor wrote, “With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent.”
Dobbs v. Jackson Women’s Health Organization will be one of the most consequential and dangerous cases in the Court’s history, with Justice Samuel Alito’s condescending and sexist majority opinion being one of the most reviled in legal writing. It paves the way for a nation that has far less federal authority and is made up of a patchwork of state laws that drastically vary from border to border. This is a stark and dysfunctional path we are heading towards, which could spell ruin for the country.
We do have precedent for this, though.
Prior to the ratification of the United States Constitution, the United States’ primary governing document was the Articles of Confederation. Ratified in 1781, the Articles established greater autonomy and sovereignty for the 13 original states, and little in the way of federal oversight.
The Congress of the Confederation attempted to govern at a federal level, but quickly discovered the glaring flaws of the Articles.
The 13 Articles offered little in the way of compelling states within the new confederacy to cooperate with one another or support the larger country. States could refuse to send troops or funding for defense. Congress had no power to compel attendance from representatives, resulting in treaties languishing for months given a lack of a quorum. There were no enumerated rights for individuals. Congress was explicitly denied powers of taxation, resulting in a Treasury with no money. So inept were the Articles that the newly formed government could not forcibly remove defeated British troops from frontier forts on American soil.
One of the most prominent supporters of a constitution was none other than George Washington. He had experienced, throughout the Revolutionary War, the limits of a decentralized, states-focused government. His Continental Army had been unable to pay soldiers, offer food, clothing, and shelter for his men, and he was forced to loot from local farmers for survival. Washington called the new country’s confederation scheme a “house on fire,” saying that unless emergency measures were taken, the building would be “reduced to ashes.”
The Constitution ratified in 1788 outlined a stronger federal government, allowed for greater executive authority in a President of the United States, and promoted the belief that a patchwork of laws should not be the driving force of a successful government. The Bill of Rights, ratified in 1791, numerated the rights of individuals. The confederation was to be done away with, and the states were to be truly united.
That idea, that hope, did not last.
We have seen time and time again the conflict between states’ rights and federal oversight. Now, instead of clarifying matters, the Court has opted to add to the confusion. It is a continuation of a path designed by the Court to sow legal confusion nationwide.
Much like how the country once was under the Articles, we have entered an era in which a strong, central government is largely absent and instead individuals are reliant on a patchwork of state laws to guide them.
Legal scholars, politicians, and jurists alike have sworn an oath to the Constitution and are meant to uphold it and its founding principles. But as the dissent in Dobbs observes, “The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning.”
The Court’s decision does away with this notion. It returns the country to a time governed by the Articles of Confederation; known today for its lack of central government strength, poor ability to negotiate with international allies, inept abilities at raising funds and defense — but most glaring of all, for its lack of rights enumerated for the individual. The Articles use the word ‘right’ five times, none for the right of the people, but almost exclusively for the rights of the states.
By contrast, the Constitution’s very first amendment states “the right of the people.”
I fear we’re heading to a return of the Articles of Confederation because the Articles of Confederation did not think about the individual or the larger country, only about the states. As George Washington said, if immediate action is not taken, “like a house on fire…the building is reduced to ashes.”
Dalton Valette lives in Denver.
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