When you make a federal case out of a state concern, you create a winner-take-all situation. If you think you’re going to win, that’s good, because you’ll win everywhere at once. But if the tide ever turns, it’s bad, because you lose everywhere at once.
And the tide always turns. It’s what tides do.
If you’ve relied exclusively on federal protection for some invented ‘right’ (whether to an abortion, or to a Free and Appropriate Education, or to quasi-governmental status for unions, or something else), there’s a good chance that you haven’t bothered to worry about pressing your case at the state and local levels, so when that federal protection disappears you’re caught with your pants down, so to speak.
There’s a name for this: Winning the battle, but losing the war. And this is what’s likely to happen, sooner or later, with the ‘right’ to abortion as ‘protected’ by Roe v. Wade.
It’s instructive to compare Roe v. Wade with a couple of education-related cases, Brown v. Board of Education and Board of Education v. Rowley, because while they appear on the surface to be different, at heart they’re all exactly the same. In each case, instead of looking at the Constitution and concluding the obvious — that the federal government was delegated no power to say anything about an issue that is entirely the concern of the states — the Supreme Court offered its usual deal, the one it’s been offering in various forms since Marbury v. Madison in 1803:
We will say that the Constitution entitles you to something that you want. In return, you agree to accept that the Constitution says whatever we say it does, not just in this case, but in every case, forever.
There’s a name for this too: Faustian bargain.
What continues to baffle me is that by adolescence, everyone has seen dozens of examples, in books or movies or television shows, of what happens when you make a deal with the devil — enough to know that the smart play, when offered such a deal, is to turn it down. And yet, when offered exactly this kind of deal by the Supreme Court, people always take it.
