Current Issue

You can access the full article of the below abstract by Timon Cline, Josh Hammer & Yoram Hazony here.

In June 2022, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade, the infamous 1973 decision that purported to discover a right to an abortion in the text of the Constitution. It was a remarkable achievement. For decades, conservative lawyers, scholars, clergymen, and activists had devoted overwhelming attention to ending the Supreme Court-mandated abortion regime established under Roe. This almost obsessive focus on overturning Roe was largely a reflection of the uniquely odious character of the American “abortion on demand” regime, which had turned abortion into a pillar of America’s culture of sexual license and a kind of sacrament of post-War liberalism.

But the Dobbs decision is likely to be regarded as a watershed in American constitutional history for reasons that go well beyond the abortion issue itself. For in recognizing that the Constitution includes no right to an abortion, the Court seemed to be bringing to a close a period of seventy-five years in which it had consistently discovered previously unknown “rights” in the Constitution and Bill of Rights, and imposed these new rights on the states through an authority it claimed to have found in the Fourteenth Amendment.

This mechanism had permitted the Court to progressively strip the states of their constitutional authority to determine their own  laws, not only with respect to the issues of racially motivated violence and abuse that had motivated the passage of the Fourteenth Amendment after the Civil War, but also on a vast array of other areas pertaining to health, religion, and morals—the very police powers entrusted to the States by the Constitution in 1787. It is no exaggeration to say that by the method described above, the federal structure of the American republic was systematically dismantled by liberal courts anxious to place issues relating to race, religion, and morals beyond the reach of state legislatures.

In the wake of the Dobbs decision, America’s sleepy state legislatures have once again emerged as the dominant venue for the most demanding and important political debates, exercising responsibility for republican self-government to an extent they have not known for decades. While opinions vary as to whether the ultimate resolution of the abortion issue, specifically, should be at the state or federal level, it is undeniable that American federalism has been given a new lease on life due to Dobbs. As President Donald Trump put it following Dobbs, whatever the states determine will be “the law of the land.”

This move to reinstate the federal structure of American government appears to be part of a broader project of constitutional restoration undertaken by the Supreme Court under Chief Justice John Roberts. From the strengthening of the Second Amendment right of citizens to carry arms in New York State Rifle & Pistol Association, Inc. v. Bruen, to the “major questions doctrine” case of West Virginia v. EPA, to the demise of so-called “affirmative action” programs in Students for Fair Admissions v. Harvard, to the limitations of the  powers of the  administrative state in Loper Bright Enterprises v. Raimondo, the Supreme Court has shown a consistent interest in rehabilitating important and long-moribund provisions of the Framers’ Constitution. In this context, the Roberts Court’s willingness to recalibrate the relationship between the national government and the states, building upon the work begun by the Rehnquist Court that preceded it, is best understood as an indication that we have entered a period in which the terms of the original Constitution are being revisited and revived.

Let us suppose that we’ve read this watershed moment correctly, and that the Supreme Court is prepared to go beyond overturning Roe, and to engage in a more general restoration of the ailing American constitutional order as a distinctly federalist one. What, then, should be the next great aim of this Court and of American conservatives seeking such a constitutional restoration?

The American constitutional order was designed, in no small part, to allow the respective states—the laboratories of policy—ample room to experiment with different settlements on questions of public religion and morals. It was designed, in other words, to defuse the rationalists’ yearning to devise a single answer to every vexing question of religion and morals, and to impose this one answer on a vast continent in which diverse communities had established themselves.

Today, more than ever, we can see the wisdom in this design and understand how much good, and even national healing, could come from returning to it now.

With this larger purpose in mind, we propose that the next longterm goal for the conservative legal movement must be to seek a reversal of Everson v. Board of Education, the Court’s 1947 ruling that originally imposed the misguided and ahistorical doctrine of “separation of church and state” on the states. More than any other decision, it was this ruling that paved the way for the destruction of America’s federalist system, especially as it pertains to laws concerning the establishment of religion and public morals, and for the Supreme Court’s subsequent campaign to suppress traditional religious and moral norms that had animated public life in America for centuries.

Everson must fall.