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Is There Middle Ground in Dobbs?

Many a low-tax advocate has suggested moving Tax Day to just before Election Day. That way, voters would have the government’s impositions fresh on their minds as they chose their representatives. 

A similar dynamic plays out each summer, as the U.S. Supreme Court issues opinions just before Independence Day. Done properly, these opinions offer a timely lesson in how our government is supposed to work, just before we celebrate our experiment in self-government.

Yes, I know: The Fourth of July marks the signing of the Declaration of Independence, not the Constitution. But if the Declaration embodies the revolutionary spirit and Enlightenment thought that sparked the colonies’ separation from Great Britain, the Constitution channels those sentiments into a durable governing framework. Many of the grievances listed in the Declaration are addressed in the Constitution and the Bill of Rights. The right to a trial of a jury by one’s peers is a familiar example.

All of which brings us to the present. The high court in recent weeks issued several controversial opinions that have people discussing the merits of our system of government. So, what do these rulings tell us about how our system works?

First, they tell us that the rights enumerated in the Constitution are protected by the highest standard. Government cannot regulate them as readily as other areas of life. The Framers included them because they deemed these rights essential to ordered liberty and self-government. 

We saw this in this docket’s attention-grabbing religious freedom cases.We might summarize them by saying the court found the tension between the First Amendment’s Free Exercise and Establishment clauses had swung too far toward the latter and needed to be brought back into balance. Similarly, in a case out of New York, the justices moved to correct that state’s disregard for the right to bear arms, undermining it through overregulation.

On the other hand, the court’s recent decisions tell us liberties not specifically enshrined as constitutional rights don’t enjoy the same protection. The court’s ruling on abortion, overturning Roe v. Wade as a case that wrongly created a constitutional right, demonstrates that distinction.

The ruling in Dobbs v. Jackson Women’s Health Organization alone does not mean women can’t seek an abortion. It means states can regulate abortions to a greater extent than they can regulate activities such as speech that are specifically mentioned in the Constitution.

Of course, rights can be added to the Constitution: That’s how women, non-whites and 18-year-olds all secured the right to vote. Constitutional rights aren’t stuck in a distant, pre-modern past. But the court in Dobbs essentially reiterated that expanding them requires going through the prescribed process, not winning the favor of judges.

Finally, the court this past week affirmed that the power to make laws rests with the legislative branch, not the executive branch. If you thought that was self-evident, guess again: The federal regulatory apparatus has grown exponentially, through both Republican and Democratic administrations. Executive agencies claim for themselves the power to shape entire industries, relying sometimes on thin wisps of tangentially related grants of authority from Congress. 

The result is that the executive branch legislates more than the legislative branch does these days. As Justice Neil Gosuch noted in a concurring opinion in the West Virginia v. EPA case, Congress passes only a few hundred laws per year, while executive agencies issue a few thousand rules each year. 

Those on the losing side of many of these cases keep making the argument that something is wrong with the court and that it needs to be fixed. What’s “wrong” with the court’s current majority is that they take the Constitution seriously. Which is not wrong at all.

The Founding Fathers did not expect the government they established to go unaltered. They included the way to alter it within the blueprint. But they did, against all odds, establish a government that holds up pretty darn well when it operates as they intended.

And that’s worth celebrating.