Overturning Roe v. Wade and the Return to Federalism
By Carole Hornsby Haynes July 7, 2022
Since the founding of our nation, and particularly with the event of the American Civil War, power has continued to shift away from the states and toward the national government, circumventing the Constitution for centralized control. Now there is a renewed federalism – in the U.S., this is the constitutional division of power between state governments and the federal government.
The U.S. Supreme Court’s overruling of Roe v. Wade was not about banning abortion, but rather giving back their constitutional rights to the states. "The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives."
Roe held that the right to abortion derives from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The Court disagreed, “The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision including the Due Process Clause of the Fourteenth Amendment.”
Dr. Ron Paul explained, “The Constitution reserves to the states the authority to write and enforce laws regarding murder. Since the question of whether or not to legalize abortion revolves around whether abortion is murder, it is not a federal issue. Roe was thus an illegitimate usurpation of state authority.”
Let’s briefly review our nation’s history to get a perspective on how the government has evolved into the massive, tyrannical central government we have today. Conventional wisdom is that big government began with President Franklin Roosevelt’s New Deal. The fact is that rapid growth began long before the New Deal.
The origins of federal growth are found in the Constitutional Convention. Austrian economist Randall G. Holcombe notes,
“The first major event in the growth of the federal government was the ratification of the Constitution in 1789. Before that, the United States was governed under the Articles of Confederation. The Constitution is frequently praised as a document that protects the rights of individuals and limits the powers of government. But a comparison of the Constitution with the Articles reveals that just the opposite is true. Under the Constitution the federal government gained more power, was less accountable, and had greater latitude to determine its own scope of action. That is what the Constitution was intended to accomplish.” (Constitutional Political Economy, vol. 2, no. 2 [Fall 1991]: 303-328).
Our U.S. government that began in 1776 as a protector of individual rights had evolved by 1913 into a government that managed the economic welfare of its citizens – the precursor of a government planned and controlled economy under socialism.
The federal government had been growing since its inception, but it was the event of the Civil War that ushered in a dramatic increase in its growth.
The Republican party -- the primarily Northern based party of Lincoln, government activism, and Progressivism -- advocated a strong, increasingly powerful central government. The primarily Southern based Democratic party -- the party of conservatism -- advocated states’ rights and a smaller federal government. Today, those ideological stereotypes have been reversed.
Except for Woodrow Wilson’s election that resulted from a split in the Republican party into Republicans and Progressives and Democrat Grover Cleveland, Republicans were in control of the federal government from Lincoln to Franklin Roosevelt.
During the War for Southern Independence, Lincoln set the precedent for increasing government power during wartime. This ushered in a national government that has continued to increase in power and control over the states and people.
The new powers seized by the federal government during the Civil War laid the groundwork for the growth of interest groups. The first interest group to systematically raid the Treasury for its own benefit was the war veterans, but only Union soldiers, not Confederates. All Union soldiers eventually qualified for a pension, even if they sustained no war injuries and despite the limited funds of the government. This was arranged by Republicans, who dominated the White House and looked to veterans for political support.
The transformation of the U.S. government continued as the turn of the century ushered in the Progressive Era. The Interstate Commerce Commission was created in 1887 and the Sherman Antitrust Act passed in 1890. The Food and Drug Administration was created in 1906, the Federal Reserve in 1913, and the Federal Trade Commission in 1914. A government initially committed to protecting the liberty of its citizens now seemed to be just as firmly committed to looking out for their economic welfare.
The Progressive Era was interrupted by World War I, during which federal power exploded. Railroads were nationalized, waterborne shipping was regulated, and the United States Food Administration, created in 1917, controlled all aspects of the food industry, from agriculture to distribution to sales. Fuels and eventually the entire economy were regulated. The income tax was added in 1913 as the 16th Amendment to fund more government growth and control.
After WWI ended, it appears that total government spending was reduced. Actually the reduction was in war-related spending. Progressive Era government expansion continued in the 1920s and through the New Deal.
Much of the rapid growth in federal law enforcement began in 1920 to enforce the prohibition on alcohol by the 18th Amendment which was repealed in 1933. Enforcing Prohibition was not a revenue generating activity but rather a way to extend federal law enforcement which did not end or decrease with the repeal of the amendment. Prohibition was likely the most visible area of increased federal government control over American behavior during the 1920s.
Federal corporations also exploded during World War I, beginning with the Merchant Fleet Corporation in 1917, the War Finance Corporation, the Federal Land Bank, Spruce Production Corporation, and Sugar Equalization Board. After the war, most of these federal corporations continued in business and lost huge sums of money.
These corporations provided a model for government growth that has continued to the present day. In 1923, the Federal Agricultural Credits Act created 12 federally owned banks. In 1924 the Inland Waterways Corporation was created to operate craft on the Mississippi River. In 1929 the Federal Farm Board was created to fund agricultural price supports.
These corporations transitioned the federal government from a protector of individual liberty to a government that centrally controls the economic welfare of the people.
In the 1920s, the federal government began a number of initiatives to help farmers: the 1922 Capper-Volstead Act to exempt agricultural cooperatives from antitrust laws, the 1923 Agricultural Credits Act for easier credit from the Federal Farm Loan Board, the 1926 Department of Agriculture that established a Division of Cooperative Marketing, the 1929 Agricultural Marketing Act that created the Federal farm, 1921 legislation for tariffs on farm imports, and the 1922 Capper-Volstead Act that exempted agricultural cooperatives from antitrust laws.
Academics influenced by the ideological ideas of Karl Marx pushed the federal government to broaden its scope in the 1920s into economic matters.
Interest in applying scientific management was gaining credibility. Those principles would be implemented in the Civil Service reform that began in the late 1800s to create a more professional federal work force.
An alliance of academic institutions, private foundations, and the government was yet another area of federal growth during the Era of Progressivism. This alliance established the National Bureau of Economic Research in 1920 to better measure statistically the economic performance of government with the application of economic principles.
Not only did federal spending grow prior to the New Deal, but so did regulation. Beginning with the Sherman Act in 1890, the federal government utilized antitrust laws to limit the economic power of business.
When our Founding Fathers declared our independence from Great Britain in 1776, they envisioned a national government with specific and restricted responsibilities. The balance of power resided with the states and the people. The SCOTUS unconstitutional ruling that abortion was legal is evidence of how far we have strayed from the original intent of our constitution.
The overturn of Roe v. Wade is just one of several recent Supreme Court rulings that return to the states and people those constitutional rights illegally seized by the federal government.