The Supreme Court's war against civil war

The Constitution was made to accommodate political division. By overturning Roe, the Supreme Court points the way toward peaceful resolution of our differences.

Fort Sumter in 1863. The Union would continue to bombard these ruins and the Confederate soldiers who continued to occupy them for the next two years.

Visiting, as I was when I started writing this post, Charleston, South Carolina, has a way of putting civil war on the mind. America’s Civil War of course began here in April 1861, when South Carolina militia, their state having seceded from the United States five months earlier, attacked the federal garrison at Fort Sumter, located at the entrance to Charleston Harbor. Fort Sumter would serve as a focus of both sides of the war over the coming four years, with the Union desperate to take it back via near-constant bombardment from 1863 to the end of the war in 1865, and the Confederacy equally desperate to retain it as a symbol of its early victories that were gradually ground to dust by the Union in the final two years of the war.

These days, thoughts of the Civil War easily lead to thoughts of civil war more generally. The National Park Service volunteer who accompanied us on the ferry Fort Sumter led off with the following announcement:

Fifty-four percent of people who voted for Trump favor secession. Forty-six percent of people who voted for Biden favor secession. At Fort Sumter, we are about to see what secession leads to, and why it’s a very bad idea.

That a boatload of American tourists need reminding that secession, at the very least, has some significant downsides is both startling and, sadly, true. I don’t know if the tour guide’s numbers are accurate, but it’s clear that Americans are highly polarized along political and, relatedly, geographic lines. Last time one part of the union left, the result was catastrophic for almost everyone involved, including the Confederate soldiers who manned Fort Sumter, occupying an area equivalent to two football fields, under a barrage of some 46,000 Union shells fired over the span of two years.

Ron Brownstein, writing in The Atlantic, recently tackled the issue of polarization:

It may be time to stop talking about “red” and “blue” America. That’s the provocative conclusion of Michael Podhorzer, a longtime political strategist for labor unions and the chair of the Analyst Institute, a collaborative of progressive groups that studies elections. In a private newsletter that he writes for a small group of activists, Podhorzer recently laid out a detailed case for thinking of the two blocs as fundamentally different nations uneasily sharing the same geographic space.

Don’t say longtime political strategists for labor unions never got their due here. Here’s the rest of Podhorzer’s thesis, as related by Brownstein:

To Podhorzer, the growing divisions between red and blue states represent a reversion to the lines of separation through much of the nation’s history. The differences among states in the Donald Trump era, he writes, are “very similar, both geographically and culturally, to the divides between the Union and the Confederacy. And those dividing lines were largely set at the nation’s founding, when slave states and free states forged an uneasy alliance to become ‘one nation.’”

I will not be distracted by the annoying reference to the “Donald Trump era” (isn’t this the Joe Biden era?). Nor will I take the bait and dwell on Podhorzer’s implication that today’s Republicans are “culturally” similar to slaveholders. NASCAR, country music and lifted four-wheel-drive trucks didn’t even exist in the antebellum South, but a comprehensive cultural and legal regime of abject racial subjugation, fostered by Democrats, sure ‘nuf did. No, let’s get past all that and focus on the part about political division, its role in American history and what can be done about our current predicament.

Let’s start with Podhorzer’s accurate observation that the United States is no stranger to political division. From the beginning, when there were only 13 states hugging the eastern seaboard, there was plenty of political, religious and ethnic diversity. New England Puritans became countrymen with mid-Atlantic Catholics and southern protestants. Some Americans wanted a future powered by urban commercial centers; others preferred the country remain largely agrarian. All of these people held their beliefs at least as strongly as partisan combatants today, and were willing to use violence to achieve their political goals. These guys had just fought against and beaten the most powerful military in the world, after all.

The American system was shaped by the country’s political divisions from the very outset. First, the Articles of Confederation tied the newly minted states together only loosely. This approach maximized the ability of states to govern themselves according to the wishes of their voters, and thus to accommodate geographic differences, but the Articles went too far toward decentralization. There was no president or prime minister, so no executive authority and Congress was so weak that it could not pay the new country’s bills or head off disputes between the states.

On the second try, America hit pay dirt. The Constitution created an executive branch and gave the federal government more power, including more power to put down violent uprisings like Shays’ Rebellion, that had roiled the new country. While expanding federal power, the framers inserted checks on that power to prevent any one political faction from running roughshod over others.

First, the federal government was to be a government of enumerated powers only. If the Constitution didn’t say the federal government could do something, it could not do it. This, the framers thought, would preserve the maximum amount of liberty to the people and leave the vast majority of policymaking to the states. Incorporating strong federalism was an essential ingredient to the Constitution, not least because to be effective the document had to be ratified by at least nine of the 13 states. South Carolina plantation owners weren’t about to cede plenary governing power to a distant federal government, and neither were New England yeoman farmers.

Second, the framers fractured the exercise of power within the federal government itself. The legislative branch would consist of two houses, each of which must approve legislation in order for it to become law. The president had the power to veto legislation and also to enforce federal laws. The Constitution left the role of the federal judiciary ambiguous, but the judiciary soon seized the role of arbiter of the constitutionality of legislation passed by Congress and signed into law by the president. This separation of powers was designed, again, to prevent any one faction from easily making radical changes to federal law.

Third, the Constitution included a Bill of Rights to make explicit the protection of individuals’ rights from federal intrusion. The First Amendment’s rights to freedom of speech and the free exercise of religion are a nod to the the political and religious divisions in 18th Century America.

This system of governance, born of a fractious polity, has been remarkably effective and durable. It has, with the notable exception of the Civil War, performed remarkably well its primary function of accommodating political division within a peaceful framework. It functioned through epochal fights over fundamental questions like whether to base the dollar on gold or silver, whether to establish a national bank, whether to fight World War I, what the role of government should be during the Great Depression, how to restrain the lawlessness of Richard Nixon and whether and how to count the electoral votes in the 2020 election.

The Civil War stands out as the greatest failing of our constitutional system. It proved unable to dissipate the sectional differences on the core issue of slavery, with horrendous results. But the Civil War stands as four years of bloody exception to 231 years of successful containment of strife.

Importantly, the chaos of the Civil War did not lead to an overthrow of our constitutional system. Following the Union’s triumph in the war, Congress and the states amended the Constitution (that used to be something that happened) to outlaw slavery and explicitly give former slaves full rights as American citizens. Those amendments rebalanced the power dynamic between the federal government and the states on the issue of race, but left intact the bulk of the Framers’ pressure release valves for political division.

The Constitution has proven highly effective at processing and mediating political division. It should be able to handle our present-day divisions about cultural issues like guns, abortion and the proper role of public schools in imparting moral and cultural values on students, right?

Maybe. And the reason why this time might be different is the other thing Podhorzer got right in his analysis: the period of time beginning with the end of World War II and ending with the double-barreled blast of uncertainty and political acrimony spurred by the 2000 presidential election and 9/11. For those 55 years the United States basked in its status of being the sole superpower not determined to make life miserable for its citizens by subjecting them to communism. There were disputes and upheavals during the post-war period, but Americans were mostly content living with each other.

Which, naturally, led Americans to neglect the constitutional mechanisms designed to accommodate political division.  A federal government that had beaten the Nazis and landed a man on the moon was emboldened and trusted by the people. It accrued power at a remarkable clip, usurping roles previously reserved for the states or deemed simply beyond the scope federal government’s enumerated powers. The more-or-less unified electorate invited this federal expansion.

As power and wealth was re-allocated from individual or state to Washington, D.C., voters happily ceded control of their own lives to a distant and formerly distrusted federal leviathan. Simultaneously, power within the federal government became massively concentrated in the executive and judicial branches, the branches least responsive to the voters.

By concentrating power in the federal government and, specifically, in the hands of the president, who after all, runs the executive branch and appoints Supreme Court justices, Americans ignored the lessons of their fractious political history and came to believe it was possible for one person mostly to govern a continental republic without things going badly off the rails.

The postwar aconstitutional and ahistorical expansion of federal power heightens the risk presented by the political divisions we see today. Whichever party holds the presidency tries to force as many of its priorities on the entire country as possible before voters react to the overreach and vote them out of office. We have too much riding on the election of one person every four years. The system has become unstable and brittle.

Which, at long last, brings me to Roe v. Wade and the Dobbs v. Jackson Women’s Health Organization case that overturned it. Whatever one might think is the appropriate policy toward abortion, Roe and its progeny were a constitutional and political disaster for America. The court took from the states the fraught question of how to regulate abortion by concocting a truly bizarre and unsupportable legal theory for the existence of a constitutional right to abortion. Roe did more to concentrate power in the judiciary and the presidency than perhaps any other factor in the post-war era. Voters who wished to restrict abortion no longer appealed to their state legislators; they focused on the presidency because the president could appoint Supreme Court justices who just might overturn Roe. Aside from the blatant unconstitutionality of Roe, its negative impact on our political culture was immeasurably negative.

The conventional wisdom is that the overturning of Roe will heighten political division. The fact that the pending decision was leaked prior to its issuance and a guy opposed to the decision tried to the assassination of Supreme Court Justice Brett Kavanaugh in his home provides some support for this contention. And, surely, many Americans are right now upset and confused about how the Supreme Court could take away the right of abortion the Court itself first discovered nearly 50 years ago.

But taking a longer view, Dobbs is likely to have a positive impact on the way in which we manifest our political divisions. Lawmakers in Tennessee can outlaw abortion; those in Oregon can encourage it. If the voters don’t like it, they can elect other people. This is the way our system is designed to accommodate political division. Dobbs is a victory for federalism, and its much-needed function as a palliative for political divion, as much as it is a victory for the pro-life movement.

Dobbs is the crowning achievement, thus far, of a conservative legal movement that has sought for decades to return the United States to a form of governance more consistent with the Constitution. This movement, and its adherents within the federal judiciary, are pushing to restore not only federalism but separation of powers. This week, the Supreme Court ruled that the Environmental Protection Agency lacks the authority to regulate power plant carbon emissions without an act of Congress. That decision again pushes policy-making toward the people’s elected representatives, giving political division an electoral outlet.

These decisions are correct because they rely on a faithful interpretation of the Constitution as drafted. They are helpful in our current situation because the Constitution, properly interpreted, is designed from the ground up to accommodate political division. Our national hiatus from the Constitution’s limitations on federal power has at once exacerbated our political divisions and, by depriving them of a direct electoral outlet, rendered them a greater threat to our nation’s survival. The Supreme Court, by applying the original meaning of the Constitution in cases like Dobbs, is providing a ladder with which we may, if we choose, descend from the gallows of political violence and, just maybe, civil war.