Opinion | The Pro-Democracy Argument Against Roe Falters When It Meets Reality

On the first point, let’s begin with a little Madison. Among the most famous essays in American political thought is Federalist No. 10. In it, James Madison makes his case for the “extended republic” against naysayers who argue that the United States is too big to be a functional country with a representative government.

His argument, in brief, is that the smaller the republic, the more acute the “violence of faction” (defined here as a group united by “some common impulse of passion or of interest” and “adverse to the permanent and aggregate interests of the community”) to its citizens.

“The smaller the society,” Madison writes,

the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression.

He concludes that if you

extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and act in unison with each other.

Madison’s point is that a federal union will be less vulnerable to the “mischiefs of faction” than the states it comprises, that “the influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states.”

Now, Madison’s theory isn’t airtight (mostly because it doesn’t anticipate the emergence of national political parties), but it isn’t wrong, either. It is easier for narrow factions to win power at the state level than for them to win control of the federal government.

And this, in essence, is what has happened with abortion.

Last year, in a review of public opinion data, the Pew Research Center found 14 states where a majority of adults agreed that “abortion should be illegal in all or most cases.” State legislatures in each may well outlaw the practice if the Supreme Court overrules Roe v. Wade. But so will legislatures in states where a majority of adults support legal abortion in all or most cases. Fifty-six percent of Florida adults, according to Pew, support the status quo under Roe. Despite this, Florida lawmakers have already passed a 15-week abortion ban. A similar situation exists in Oklahoma, where 51 percent of adults support the right to an abortion in most cases but where the Republican governor just signed a far stricter ban into law. Then there are states — like Arizona, Michigan and Wisconsin — where pre-Roe bans may take immediate effect if Roe is overturned.




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