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America’s Post-Roe Constitutional Abyss

The states’ rights theory embraced by slaveholding states before the US Civil War and later used to defend racial segregation is again threatening civil rights and the underpinnings of the American state. The doctrine is part of a right-wing legal insurgency attacking everything from federal regulation to the electoral system.

WASHINGTON, DC – The old legal specter of the states’ rights doctrine is haunting the American republic. This zombie constitutional theory was once used to promote the cause of the rebellious slaveholding states before the US Civil War and to defend racial segregation in the former Confederacy for a century afterwards. Today, it again threatens both civil rights and the underpinnings of the American state.

The states’ rights theory holds that the states may decide on core liberties and even nullify national policies. And it runs through the recently leaked draft of a US Supreme Court majority opinion authored by Justice Samuel Alito that would overturn Roe v. Wade, the Court’s landmark 1973 decision that legalized abortion nationwide.

Such a ruling would return the United States to the status quo ante, when states could criminalize abortion – as 30 did before 1973. The Supreme Court would thus turn back the clock on women’s rights by a half-century and open a Pandora’s box of further reactionary judicial activism that overturned settled precedents.

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