What Should Be National and What Should Be Local in American Judicial Review

Abstract

There is much to say about Dobbs and the various opinions in it. My jurisprudential sympathies, truth be told, run in favor of the decision. But I plan to say little about it. I would prefer to focus on the source of those sympathies rather than on the decision itself. My concern is that we are asking too much of the U.S. Supreme Court. My claim is that we should decentralize more of our debates about American constitutional law. One question dominates every other in American history: What should be national and what should be local?Over the last 100 years or so, we have tended to favor national answers over local ones when it comes to American constitutional law. Often with good reasons: dealing with the imperatives of the Great Depression; bringing Jim Crow to heel; addressing policy challenges that have emerged from an increasingly national and global economy. Even as we recall the reasons not to forget these chapters inAmerican history and even aswe contend with chapters still unfolding, I wonder whether, halfway through our third century, we should pay more attention to the localism side of federalism and be more patient when it comes to the nationalism side