Federalism Doesn’t Abet States Trampling Rights

October 13, 2005 • Commentary
This article appeared on The Wall Street Journal on October 13, 2015.

In “The New New Federalism” (Review & Outlook, Oct. 5), you unpack the Oregon assisted suicide case now before the Supreme Court, Gonzales v. Oregon, and then rightly chide liberals for their late discovery of federalism and conservatives who abandon federalism when it leads to results they don’t like. But you go on to draw the parallels between Washington v. Gluksberg, where the court held that there was no constitutional right to assisted suicide, and Roe v. Wade, where the court found a constitutional right to abortion, concluding that both questions “should be settled democratically, not by judicial or regulatory diktat.”

I beg to differ. Federalism, as refined by the 14th Amendment, was instituted to protect our liberty, not to enable states to trample it. Yet few areas of constitutional law today are more confused than those involving federalism and the 14th Amendment. Liberals have an altogether political view of the rights the Constitution was meant to protect. Conservatives, fearing “judicial activism,” have a narrow view unwarranted by text or constitutional theory.

Yet the two issues at hand are easily distinguished. Assisted suicide involves acts between consenting adults. No one else can be heard to complain when individuals exercise their rights to engage in the practice. Whose life is it, after all? Thus, Gluksberg was wrongly decided. By contrast, Roe raises the question of when the right to life begins. Reasonable people may reasonably disagree about where to draw that line. Accordingly, it falls not to courts but to the states, where the general police power resides, to say when that line has been crossed and a crime has been committed, much as states do in many other line‐​drawing contexts. Thus, federalism will allow different states to draw different lines in the matter of abortion. But with assisted suicide, courts should not allow states, in the name of federalism, to violate the rights the Constitution was written to secure.

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