All politics is activist

In his most recent article for, Ben Shapiro offers a rebuttal to the “sky is falling” analysis pro-choice supporters foresee. Consider:

If Roe were overturned, the people in each state would decide abortion policy for themselves. Voters in California would decide abortion policy in California; voters in Alabama would decide abortion policy in Alabama. Some states would likely restrict abortion heavily; others would allow free access to abortion. Instead of a broad national answer dictated by the Supreme Court, we would have a plethora of answers dictated by the people.

I actually agree with Mr. Shapiro on this point. Federalism is an amazing experiment, producing a broad spectrum of data points on the issues facing our nation. However, perhaps a refresher of Mr. Shapiro’s words during last year’s presidential campaign could provide some insight.

With the judicial branch acting to usurp legislative power on this issue, a federal amendment is no longer optional but is a necessity in order to protect marriage.

I suspect Mr. Shapiro would defend the difference in his statement with a deeper analysis of judicial activism, but I’m not buying it. This is little more than federalism when it’s convenient and agreeable. Whose words to better refute Mr. Shapiro than Jonah Goldberg, who wrote this about the FMA when it first appeared.

You can’t favor federalism for only good ideas or ideas you like. Experimentation means allowing local communities to make mistakes.

Should I read anything into the obvious conundrum of Mr. Shapiro’s argument? He supports federalism for abortion, with the expectation that it would remain legal in most, if not all, states? But he thinks federalism isn’t sufficient for same-sex marriage? Either I’m reading it wrong and he’s only left his federalist pro-life argument at an early stage that would eventually lead to a constitutional amendment defining a fetus as a human being from conception, or he’s more worried about the negative impact of same-sex marriage than abortion. How is that logical? One caveat: convince me without resorting to the alleged judicial activist disparity, since the legislators in this are just as activist.

3 thoughts on “All politics is activist”

  1. Radley Balko wrote the same thing last week. And they’re both wrong. If Roe (and therefore its progeny) were overturned on Monday afternoon, then by 8AM Tuesday morning a federal Right to Life Act would be introduced in both houses of Congress.
    And even if that were not to happen, “federalism” does not mean that it’s any better to have one’s liberties infringed at the state level than at the federal level.

  2. I think the same court that would overturn Roe would likely find a Federal Right To Life Act unconstitutional. Being that there’s no conceivable way to make that stem from the ennumerated powers of congress.

  3. Kip,
    I understand both points you make (and definitively agree with the second), but I’m not sure I understand the connection. I agree that many would like to see a Right to Life Act, but why don’t they just introduce it now? But beyond that, are Shapiro and Balko wrong because there is a right to abortion? I’m sure we agree on the right to privacy, so that’s not a contention. I’m undecided about abortion resting on that right to privacy. Self-ownership is vital, as I’ve indirectly written about in other circumstances, but is that the only factor in abortion? Have a woman and her partner changed the equation when she gets pregnant? I’m excluding pregnancy resulting from non-consentual sex, because that’s a different argument, although that might be the angle that supports an overall right to abortion.
    Unless overturning Roe means overturning the right to privacy, which I concede it may mean that, then I’m not wedded to abortion as a right based on privacy. Obviously, if overturning Roe directly overturns the right to privacy, I’ll take the right to privacy, since that has a much larger impact on where our society is going with respect to government influence and control. I’m just not convinced that the inherent right to privacy supports a right to abortion. Is there a different, better justification?
    I haven’t come to a conclusion and I’m still working through the process, though, so your comment is helpful to my thinking. Thanks.

Comments are closed.