I've been grappling with the abortion issue lately, and not in the usual way. I have stated my opinions on the moral issues before and this post is not to revisit that topic.

Rather, I want to consider abortion in the context of the changed, evolved, Constitution. A lot of activists talk about getting rid of Roe v. Wade, and whenever I hear that I am reminded of states' rights.

Whether they are liberal, moderate, conservative, libertarian, or something else, most Americans believe that Roe v. Wade, by declaring that most state prohibitions against abortion violated the constitutional right to privacy, essentially removed from the states the power to prohibit abortion. So, if Roe v. Wade were reversed, in theory each state would be free to pass whatever laws the various legislatures wanted, which would mean that a woman who wanted an abortion in a state which banned the procedure might have to go to a state which allowed it.

But is that necessarily true today?

Remember that the Roe v.Wade right to privacy derived in turn from Griswold v. Connecticut, which had held that state laws prohibiting contraceptives violated the right to privacy. So, reversing Roe would mean reversing a long line of case law grounded in right to privacy, including not only Griswold, but Lawrence v. Texas. Not only would whatever state anti-abortion laws are still on the books be reinstated, but so would whatever anti-contraceptive laws and sodomy laws are still on the books.

But would a rollback of Roe v. Wade be accompanied by a rollback of federal power? I don't really see how it would.

So my question becomes one of federalism. Assume Roe v. Wade is reversed. Would this mean that the federal government could simply outlaw abortion? And contraceptives? And sodomy? Most conservatives would say that it would not mean that, at least most states' rights conservatives. But what about conservatives who don't believe in states' rights?

...there's the Declarationist philosophy, which finds a giant, extraconstitutional moral veto power in the Declaration of Independence. To put it simply, if something is deemed immoral, then neither Congress nor the states can do it, and constitutional protections do not apply. I remember hearing one of the leading proponents of Declarationism warn that conservatives should not put much stock in getting rid of Roe v. Wade, because state legislatures would simply pass laws allowing abortion. Instead (he argued) conservatives should unite around the Declaration as a "moral basis for conservatism" and that the Declaration it would trump any and all state law anywhere in the land, "states' rights" be damned. (As well as any "freedoms" allegedly found in the Constitution.)

The Declarations believe that states' rights are morally irrelevant, while the liberals believe states' rights are legally irrelevant. (Not that either "side" has asked, but I think this greases the skids for future collusion...)

Seen this way, there really was no need for the 13th Amendment, for Congress could simply have passed a law prohibiting slavery, or the 18th Amendment, for Congress could have voted to prohibit alcohol the same way that they prohibited drugs.

I've called the 18th Amendment the "telltale amendment," because I think it provides clear evidence that the Constitution once meant something, and I think the 13th Amendment provides only further evidence. Even after fighting a huge and costly war driven in large part against slavery, they still had to amend the Constitution to actually make it illegal. Why? For the simple reason that Congress lacked the constitutional power to do something so simple as pass a basic law abolishing slavery -- all language in the Declaration to the contrary notwithstanding. (So much for the Declarationist position that slavery was somehow abolished by the Declaration.)

Of course, now that Congress has the power to do anything it wants, why would any moralist need the Declaration, much less the Constitution?

They are both dead. All hail total federal statism!

I'd call it federal totalitarianism, except they're not quite there yet, and I try to be accurate. The reason the federal government has not become totalitarian in the full sense of the term is not because they lack the power to go there, but only because they haven't fully used it.

Yet.