Strengthening Constitutional Self-Government

No Left Turns

Abortion and the states

David Forte reviews Paul Benjamin Linton’s book, Abortion Under State Constitutions: A State-by-State Analysis and finds it worthy of our attention. David writes that Linton "has provided the definitive answer to the oft-asked question, what happens if Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) are overruled? The breadth and depth of his effort is arresting."  

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In his review, Forte writes, paraphrasing Linton's argument, that

(Regarding a state-constitution right as having a content independent of the federal Constitution) "The asserted right might be less protected than the right under the federal Constitution (in which case the Supremacy Clause makes the federal guarantee binding on the state court)"

How is this so? How does the "Supremacy Clause" command a state court interpreting its constitution to affirm and conform to a particular "federal guarantee"? Would not such a "guarantee" typically come merely from a federal court (and probably in obiter dictum)? Article VI clearly says that the Constitution is binding on all state officials, but it is far from clear that in this context (or any), "the Constitution is what the justices say it is." For specificity -- and to delineate by contrast any judicial implications of the "Supremacy Clause" -- see the "federal" commandment on state courts in Article IV.

In abortion policy, as in every Court-mandated national policy, it's time to revive President Jackson's argument that the Court does not have the final say on the Constitution's meaning.

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