The Supreme Court Is Trying to Demote American Citizens to State Residents

There. I fixed it.

1: Is There a People Called Americans?

That’s the question that follows from the decision of the Supreme Court’s conservative majority to overturn Roe v. Wade and Planned Parenthood v. Casey. And I don’t mean whether women or people who are pro-choice are Americans or equal citizens in the absence of Roe/Casey. I mean this:

Is there still an American people? Is the source of our identity as Americans intact? Are we still one people? The old bromide that there is more that unites us than divides us — is it still true?

We see the doubt already, just two weeks after the Supreme Court did what it did, in the memes saying July 4th celebrations are cancelled due to a lack of independence, in headlines like “This July Fourth, We’re Torn Over What We Love About Our Country” and “America is Growing Apart, Possibly for Good”, and in friends and family who are decidedly not woke but nonetheless don’t feel like celebrating this July 4, 2022.

This is a series of seven (long) articles, all in one place, in which I provide probably more context than is necessary, to explain why this isn’t an idle question or alarmism or a matter of religious or political differences of opinion. These are serious questions made more serious by how divided we are as a country, but even in a more united era and even if the issue wasn’t abortion, the question would be the same: Can the U.S. government take away a right without undermining what it means to be an American?

I’m going to explain federalism, which is both the internal structure of the American government and what the Supreme Court majority is relying upon to convince us Americans have more freedom without Roe rather than less.

Then I’m going to talk about sovereignty, the thing divided between the U.S. government and the states that makes ours a federal system of government. Sovereignty, at its most basic, is who gets to make laws, and in our system, it’s both the federal and state governments, but they are not equal, as many people mistakenly believe..

The idea of sovereignty gave birth to the idea of the nation-state. I’ll explain what it means to be a nation, a state, and a nation-state.

Then I’ll explain how our nation-state was created from whole cloth, and how it absolutely depends upon the U.S. government protecting the rights of all of its citizens no matter what state we live in despite our federal system and arguably because of it.

And finally, I’ll explain how the Supreme Court majority’s decision, relying on a misbegotten conception of federalism, to end the U.S. government’s recognition of fundamental reproductive rights undermines whether there is a nation of people called Americans and in so doing imperils the endurance of the American nation-state. Though the state may endure, it will change our lives fundamentally and for the worse if the nation and the state cannot endure as one.

It’s a long read (and I know I didn’t catch all the typos across eight drafts). Feel free to skip to Part 7. But I encourage anyone who thinks this is alarmism to read it in full to grasp how one court case — as fundamental as reproductive rights are, still just one court case — risks undoing what Americans have spent two-and-half centuries building — not just a country, but a people.

2: What is Federalism?

“Federal” is a structure of government. “Federalism” is that structure in action.

From 1777 to 1789, the United States’ constitution was called The Articles of Confederation. Note the language: the document spelled out a confederal (con-federal) structure of government. Under the constitution effective since 1789, the United States became a federation; today we call the government of the United States — i.e., the government that makes laws that apply everywhere in the United States — the federal government. Rounding out the list of major government structures is what’s called a unitary government.

Almost every country in the world has one of these structures because almost all countries are made up of political sub-units. In the U.S., we call the first layer of political sub-units states. The difference between a confederation, a federation, and unitary government is how much sovereignty the political sub-units have within the.

At its simplest, sovereignty is the authority of a governmental unit — whether a municipal, provincial, state, or national — to make and execute laws within its own borders free from interference by other governments. The sovereignty of countries is considered in international law to be all but absolute. Countries get to do what they want inside their own borders without legitimate interference from other countries in all but the most exceptional cases such as genocide.

Within countries, however, the sovereignty of the political sub-units is not absolute; it is defined in the country’s founding charter. They can have lots of sovereignty, or they can have none.

In a unitary government, which is the most common type of government across the planet, the political sub-units are merely administrative units of the national government. They have only the authority that the national government gives to them, and the national government can add to and take away that authority when it wants to. The sub-units might not, for instance, be able to create their own environmental statutes, but they can create zoning ordinances. The United Kingdom is a unitary constitutional monarchy. France is a unitary republic.

In a confederation, the political sub-units of the national government have more sovereignty than sub-units in unitary governments and federations, i.e., more authority to make their own laws and carry out certain governmental functions like central banking. In fact, in some confederations, political sub-units actually have more power than the central government. The European Union is such a confederation and, for instance, each country making up the E.U. can choose if it wants to use the euro currency or it if wants to use its own currency. As we saw with Brexit, the political sub-units of the E.U. can even take themselves out of the confederation, withdrawing themselves from any authority the sub-units had granted to the confederal government.

Federations lay in between confederations and unitary government on the continuum of political sub-units’ sovereignty. When the 1789 constitution went into effect, it transformed the United States of America from a confederation into a federation. The sub-units — states — of the earlier confederation, for example, had the authority mint their own currencies but the national government did not. The constitution of the new federation granted the power to mint currency to the national government as well as the authority to create laws restricting the power of the states to mint their own. In other words, the states lost some sovereignty to the federal government, but not all of it.

Federalism in the United States is thus an internal balance of national sovereignty and state sovereignty.

American law calls the federal government and the state governments separate sovereigns. This means the national government maintains sovereignty over the entire country, and each state maintains sovereignty within its borders, but the sovereignty of the national government is superior to the states’. In the United States, that concept is enshrined in the Supremacy Clause of the constitution. If a state law conflicts with a federal law, whether statutory or constitutional, the federal law is the one which governs.

That’s why when the Supreme Court of the United States ruled in 1973 that there is a federal right to choose whether to carry a pregnancy to term, it nullified state laws banning abortion — federal law is superior to state law, therefore under that federal ruling, the state laws no longer could be enforced. Like everything else in the constitution, where the power of the federal government ends and the states’ begin is a matter of debate, but that federal law is superior to state law has been reaffirmed by the federal judiciary many times, and Abe Lincoln and Sam Grant added an exclamation point when they made clear states cannot withdraw from the Union or nullify the laws of the federal government within their own borders.

3: How did America Get a Federal Government?

There was no colony called America under the British crown. There were 13 separate colonies, each its own political sub-unit of the British government, in what would become the United States. In breaking away from Great Britain, there was no reason that each colony could not become its own country. Vermont and Rhode Island actually were their own countries for a little while, and other states could’ve done the same. Instead of declaring themselves The United States of America in 1776, the colonies could have declared their independence as separate countries, formed a military alliance to secure their freedom from the king, and then gone their separate ways when the war was won, the sovereignty of each completely unencumbered by any of the others.

It probably wouldn’t have worked. Without The Articles of Confederation and the obligations it created for each colony to the others, as well as a central authority to organize the war, the colonies may not have won their independence, or not all of them would have, and whether they all did or just some, they might not have been able to keep it if the British had eventually decided they wanted it back.

Having secured their independence and having just agreed they had a right to break away from any country to form their own, the end of the war made remaining a single country of confederated states less urgent and less obviously beneficial. Just as they had as colonies creating the confederation, as states creating the federation, not everyone agreed attaching themselves to one another under a central government, one that would be much stronger than the one it would replace, was in their interest.

If you took an American history class, you know the basic outlines of this story. If they formed a republic with representation in the national legislature apportioned by population, then small states would have less power relative to big states. If the president were elected on a popular vote, small states would hold less sway over the presidency than big states. States with strong economies didn’t love the idea of putting their money into the national government’s coffers to spend in other states. Valid reasons to keep the confederal system with its greater state sovereignty, or even for a state to go back to being its own country.

Those pushing hardest for a transition to a federation had two tools at their disposal to do so, persuasion and compromise. The first meant convincing people of the benefits of federalism generally. Read The Federalist Papers if you want to understand all of the arguments those favoring a federation made. A few of them are why the majority of the Supreme Court believes returning the issue of abortion entirely to the states (for the moment) is a good idea:

• States don’t give up all of their sovereignty. This is less an argument for federalism than a description of it, but the point was that states signing on to the new constitution would still have significant authority to make their own laws. They would not be wholly subject to the national government as they had been to the British crown.
• Certain things are better decided at lower levels of government, which are closer to the people and their issues. If there’s a drought in California, it makes sense for California to impose water restrictions in California; it wouldn’t make any sense for the national government to impose water restrictions in places that don’t have a drought, and because the national government is on the opposite side of the country, it probably wouldn’t do as good a job as the state if it tried to impose water restrictions just in California. Local solutions to local problems.
• Certain things are better decided at the national level. For example, states shouldn’t make treaties with other countries because a country can’t have 50 foreign policies, so the federal government has control of our country’s international relations. Citizenship is another example: chaos would ensue if each state got to decide who is an American citizen. Indiana would be able, for instance, to make a law that a citizen of Illinois loses their American citizenship with its rights and protections while they are inside the borders of Indiana. Thus citizenship is a matter of federal law. A national solution for a national problem.

If you take federalism as a cardinal virtue, you want to allow states to retain as much authority as possible. It you take federalism as a means rather than an end, you want to allow the states to retain some authority, but maximizing that authority is not a goal worthy in itself. Instead, you determine which level of government is best positioned to address a problem and whether there are questions at stake that should be decided uniformly, such as to protect everyone’s rights. Not the rights of Ohioans and Floridians, but everyone’s rights.

As political entities, it makes sense that states in the 1780s would care how much power they had compared to the national government, but at this distance, it makes less sense why people would care. Care so much that some didn’t want to join the new federation. After all, weren’t they all Americans?

Why would some so strongly object to being governed by other Americans? Because while they were all Americans in the sense of citizenship, they did not see themselves yet as an American people.

If it’s 1788 and you’re from a small state, there were maybe some specific reasons you didn’t want to become part of a country in which the national government held more power than state governments. But above the level of those specific reasons, you probably identified more with your state than with the country. After all, your state is older than the country, and the rest of the country is remote in that period. You didn’t want to be governed by a national legislature effectively controlled by New York, Massachusetts, and Virginia. You wanted to be governed by laws made by your state, by the people who were most like you. The disproportional representation in the Senate and Electoral College were the compromises that convinced you to support going from part of a confederation to a federation. However, that desire to be governed by the laws of one’s own state was not specific to residents of small states. People in large states also identified with their state more than the country, and they too wanted to be governed by laws made by their state, by the people they most closely identified with.

Lincoln hadn’t even been sworn into office when southern states started seceding in 1860. Literal volumes have been written about why non-slavers would fight to save slavery, and its beyond doubt that anti-black hatred and what have been called the wages of Whiteness were the main reasons why. However, another prominent reason was the loss of southern control of the federal government.

To be clear, I’m not referring to the canard that the war was over states’ rights (a state’s right to do what? to permit people to own other people). I’m referring to a general sense that the people in control of the federal government were no longer like them. Southerners didn’t see themselves under the new president and congress as Americans being governed by Americans. They weren’t Americans being governed by Americans, but southerners being governed by northerners. They identified first with their state, then with the south. The north was all but another country, and they didn’t want to be governed by people from all but another country.

In the north, people identified with their state as well, but the sense of identity stemming from being an American was stronger. Many northerners who went to war didn’t care about emancipation, and some of them even opposed it, but they fought to save the Union because the Union itself was important to them. Northerners generally saw themselves as Americans, and for that reason, they saw the American Union as worth being a part of and preserving.

A greater identification with state than country would persist, especially in the south, but it would slowly erode and eventually be all but eliminated. The people in the United States came to identity as Americans.

4: Sovereignty Means Sometimes You Have to Accept Damnation

The concept of sovereignty (remember that? the thing federalism is based on) in the western world and the concept of the nation-state stem from the end of The Thirty Year’s War, fought from 1618 to 1648. This was a religious war between Catholic and Protestant countries, and it devasted much of Europe. Up to half of the people living in what comprises modern Germany were killed. The pilgrims of Mayflower fame fled England for the continent to practice their faith, and the emigrated to America mostly because they didn’t much care for Holland, but it’s hard to imagine the start of that war wasn’t on their minds when they decided to duck the hell out of Europe and make for Virginia.

The war ended in The Treaty of Westphalia, which said that the parties would agree that the ruler in each country — and remember there were a lot more countries and many were literally the immediate area around a town or castle — got to decide what faiths were practiced in his country. There were some protections for religious minorities, but those protections still amount to what we would consider persecution. However, the real or perceived persecution of a religious minority or the desire to spread one’s faith were no longer acceptable reasons to invade your neighbor. Broadly interpreted beyond the bounds of religion, you get the concept of sovereignty: that ruler decides what happens in his borders; you get to decide what happens within yours; the use of force to compel a different policy or behavior is no longer regarded as legitimate by the international community.

It didn’t put an end to war, but it took away what had been an accepted reason for going to war, and in the process, it established the supremacy of the state. Did the Pope tell you to invade Holland? Still doesn’t make it a legitimate use of force because Holland is sovereign. Did God tell you to invade Spain? Still doesn’t make it a legitimate use of force because Spain is sovereign. In matters between countries, God no longer had a say.

You can’t overstate how huge a change this was and how difficult it must’ve been for the people of the time, rulers and ruled, to accept. The people of the time almost universally believed in god, believed everyday events were the result of god’s benevolence and wrath, believed he spoke to them, believed rulers ruled because god wanted them to, believed god wanted the world to be a certain way, believed he wanted them to be his instruments in earthly affairs. They believed that meant spreading their faith by any means necessary, wiping out heresy and apostasy by any means necessary, and that they would be damned to Hell for eternity if they didn’t do as God wanted. Even to tolerate the existence of another sect was to risk damnation. The Treaty of Westphalia said, none of that doesn’t matters anymore, the sovereignty of kingdoms now comes before the kingdom of heaven.

For those who believed god wanted them to stamp out other sects, adhering to the sovereignty outlined in the treaty risked literal damnation.

The treaty was a compromise. The war could not be ended by voluntary or coerced conversion or by military victory; it just kept going. In fact it coincided with The Eighty Years War. Peace could only be restored if the parties agreed to live and let live, and that’s what they did. Not before, however, that war of religion claimed 4,500,000 to 8,000,000 dead by 1648, amounting to 5–10% of what the European population had been in 1600. That’s an understatement of the local devastation.

The acceptance of sovereignty had another major effect as well. Remember this was also still a time when countries would swap territories, and no one considered whether that was fair to the people living there. You’re Bavarian and don’t want to be ruled by a Luxembourger? Too bad. Your part of Bavaria was part of the dowry paid to the Prince of Luxembourg. Same would happen at the end of wars, the swapping of territory like squares on a chess board. That sort of thinking wouldn’t become the exception in Europe until the end of World War II. To this day, there are ethnic Germans in France (Alsace) and Italy (Trentino-Alto Adige/Süd Tirol) because France and Italy were granted those territories as reparations from Germany after World War I, but at the end of World War II, Western Europe’s leaders weren’t talking about slicing up the map of Europe as spoils of war.

It took 300 years, but the seed of that change in thinking also stems from The Treaty of Westphalia because of the concept of sovereignty the treaty made real. Sovereignty implies that there is something inviolable about a country, and once sovereignty was established, if not always respected, that implied inviolability created the whisper of an idea that the connection between the ruler and the people he rules is something deeper than that the people live on land the ruler owns.

5: The Rise of Nation-States

By 1648, Europe had had states since antiquity, what we colloquially call countries, and in this case, I’m referring to the polity, i.e., the political meaning of country rather than the geographical. Europe had had nations for even longer. The difference between a state and a nation, as social scientists use the terms, is a nation doesn’t refer to a government or its territory. A nation is a people — the two terms are largely interchangeable — with some combination of shared history, culture, language, religion, ethnicity, etcetera. Those things collectively confer a group identity, and that group identity passes to the individual within that group, i.e., a person identifies with their nation.

Kurds are a nation, but they don’t have a state. So are Basques, Catalonians, Bretons, Uighurs, Tibetans, and hundreds, probably thousands, of other nations that don’t have their own state in the way that the Irish have Ireland, the Japanese have Japan, etcetera.

People become nations, and nations form states, but states can contain multiple nations either by happenstance at their creation; expansion; or forced, coerced, or voluntary migration.

People through almost all of history and many parts of the world today are more likely to identify more strongly with their nation than their state, i.e., their country.

A nation-state is what you get when the unofficial borders of the nation are the same as the official borders of the state. This only happens when the thing that defines a nation — the primary source of identity that distinguishes that nation from other nations — is living under the protections and rules of a state. For instance, seeing yourself as French because you live under the umbrella of the French government with the rights and protections and stability and opportunities that confers is an example of how a nation can stem from identification with the state. That’s what makes a nation-state.

Before The Treaty of Westphalia, people identified with the state in the geographical sense, but there was no such thing as a nation whose source of identity was the state as political entity.

That notion wouldn’t have made much sense before sovereignty was an established principle. States prior to sovereignty weren’t strong enough to be such a source of identity. What stood for a country was in most instances small, and they were led by too many small-minded rulers. They spent too much time fighting each other while justifying the mostly predatory relationship between ruler and ruled on the protection the nobility gave to the commoners. Protection from what? Mostly other nobles. Reasonably then, a medieval king’s advisors were mostly knights. Medieval kings needed relatively few administrators, and the state was small.

By end The Thirty Years War, however, feudalism was long gone, serfdom was gone, the vassal relationship that was built upon it was gone; countries were more consolidated, though many micro-countries still existed; humanism, science, and global exploration made commerce much more complicated; and these changes necessitated a larger state, a true government administration to build the roads, dredge the ports, fight the pirates, colonize distant lands, all the things that cost money and require central organization. Even where monarchs ruled, the few administrators making up the privy council in the pre-modern era gave way to governments. Governments more centralized, more powerful, more a presence in everyday life.

Pre-modern rulers came and went with little presence in the lives of their people. You can’t build a nation around identifying with that kind of ruler or his state. But a state run by a government providing continuity ruler to ruler and presiding over robust economies buoyed by the rebirth of humanism and the expansion of rights and prosperity that came with it? With the advent of sovereignty making state the prime movers in earthly affairs, the state was finally in a position to overtake city, region, and faith as the primary source of group identity, and it did so over a long period.

National identity became the catalyst for national consolidation under a single government. There were once hundreds of German states but a sense that all of the people in them, regardless of state, were Germans. In the mid-1800s, that spurred the unification of the German states into modern Germany — all the German people, with a few exceptions, living under the rule of a single German state. Same in Italy. Independence movements in Europe’s increasingly unstable empires were based on the same force, nationalism. While chauvinist and jingoistic in some forms, what it amounted to in those empires was a desire for nations to govern themselves, to have their own nation-state. For instance, a desire among Slavs in southeast Europe to not be ruled by Austria-Hungary.

Woodrow Wilson took the next major leap when he promoted national self-determination during and after World War I. He didn’t get many adherents in positions of power in Europe, but what Wilson was trying to do was prevent the swapping of territory as reparations and war spoils. His failure to get others to go along with him are why part of Tyrol is in Italy and Alsace is in France, among other examples. He saw the many nations and felt their fate should be decided by themselves, not be bartered at a bargaining table as if they were wildlife that came with the land. The sovereignty of the state was the only surety of self-determination that a nation could have, so Wilson argued nations should be the ones to decide if they want their own sovereign state or if they wanted to be part of another. He was a hypocrite insofar as he was a virulent racist who didn’t apply the right of self-determination to non-White nations, but his principle of national self-determination, and the wisdom to see that it promotes peace, stands today as an accepted part of the international order. The failure of other countries to listen to him is why World War I gave way to World War II.

Americans from prior to the Revolution and up to the end of the 19th century saw themselves as belonging to the nations of Rhode Island and Georgia first, then to the nation of Americans. Time, the same historical forces that were at play in Europe, the Civil War, westward expansion, and American colonialism reoriented people’s thinking. They came to see themselves as Americans first, and the highs and lows of the 20th century reinforced this identity through Depression and New Deal, two world wars, one cold war, and the expansion of civil rights to all Americans.

The latter, by recognizing American rights, took away the authority of states to discriminate in certain matters and in certain ways. Americans saw themselves as Americans, and the federal congress and above all the Supreme Court confirmed that because they were Americans, they held certain rights. The states remained sovereign in many other ways, but over these rights, they had no sovereignty, no authority to overrule the federal government. These were national rights belonging to the nation of Americans, and it didn’t matter which state you lived in.

That further reinforced the American people’s identification of themselves as Americans first. It’s been a long time since anyone has invoked “my rights as a Kansan” when defending their liberty.

6: The American Nation-State

The United States is a country that embodies the meaning of nation-state in its purest sense. This country is not a nation that gave rise to a state but 13 states that gave rise to a country, and that country eventually created a nation, transforming the state into a nation-state.

No matter where in history you plausibly place the beginning of The United States — pre-Columbian, 1609, 1619, 1621, 1776, 1789, 1791, any time thereafter — the people living in what became The United States and the people living in The United States at its political birth never comprised a single nation.

We’ve never been an ethnically, ancestrally, or religiously homogeneous nation or state. Those who believe the country was founded as a European, Christian country are advertising either their malice or their ignorance or both. Obviously, they are cutting out the non-White and non-Christian people who were present in North America since long before Europeans arrived, but they are also flattening everyone descended from a people native to the European continent into a single category those people at the time did not use to identify themselves, and they are flattening Christians the same way.

The people of European descent present in modern-day America at any of those times identified not as White and not as European but as English, French, Sottish, Irish, Scotch-Irish, Welsh, Cornish, Bretons, Basque, Catalans, French, Germans of every kind, Spanish, Dutch, Italians of every polity on the peninsula, and others. Europe as a culture was hardly a concept yet, and the idea of being ethnically or politically European wouldn’t exist until the late 19th century at the earliest. Even then and to this day, most Europeans still identify themselves based on their country, not their continent or the E.U.

The Christians who came to America were also not homogeneous in their faith. That’s precisely why some of them were seeking in the colonies freedom to practice their religion. Back in the Old World, people were imprisoning and burning each other over Christian religious differences in a conflict that began all the way back in 1517 when Martin Luther nailed his these to a church door in Wittenberg. When Europeans started emigrating to North America, they brought with the religious differences driving that conflict. When the pilgrims established Plymouth Colony, 28 years remained in a sect-against-sect Christian religious war that killed on a scale Europe wouldn’t see again until The Napoleonic Wars.

Plymouth Colony was founded by Anglican Separatists, and 40 miles away as the crow flies, Massachusetts Bay Colony was founded by Anglican Puritans, both of them distinct from the just plain Anglicans down in Virginia. The Puritans of Massachusetts Bay founded a literal theocracy that banished heretics, imprisoned Quakers, and infamously hanged four of them. Pennsylvania was founded as a colony for Quakers, a place where they could be safe, and Maryland was founded as a colony to serve the same purpose for Catholics. In all these places, other forms of Christianity were being practiced as well, and almost right away, those sects in the colonies began giving birth to new sects. These sects emphatically did not see themselves as Christians all the same. Jews and Muslims also lived in the American colonies and early Republic, and of course, so did indigenous and African religions, and various syncretic religions that were created when all these faiths collided.

No American nation created The United States of America. There wasn’t an America nation when the United States was created.

Multiple ethnic and religious nations created the United States, and what transformed those nations into an American nation, into the American people, was a growing identification with the country itself, with the political rights and protections they possessed because of the government they had formed. To this day, fewer than 10% of Americans identify their ancestry as American. So why are we Americans? Why do we think of ourselves that way? Why is there such a thing as the American people?

We identify as members of the American nation because we are citizens of The United States of America with the privileges, protections, and rights thereof. Those are what define the American nation; those rights and the government that protects them are the source of our identity as Americans. Without them, there is no American nation.

7: The Court is Trying to Demote Us From Americans to State Residents

Now we arrive where this began, the nexus of federalism, sovereignty, what it means to be a nation-state, and the Supreme Court majority did in overturning Roe and Casey.

Our country is a federation, and the states and the federal government are separate sovereigns. Both have the power to make laws, but the states cannot make laws that conflict with national laws. Some policies are best made at lower levels of government and others at the federal level. However, there is a profound difference between policies created by statutory laws and rights recognized by constitutional law.

Privileges can differ from place to place without any moral tension; rights are inherently moral matters, and what is right is right everywhere in every time. Privileges can be taken away; rights cannot be taken away. That’s what makes them rights.

At which level of government a statute is made is a matter of differing circumstances and jurisdiction. At which level a right is recognized is a matter of identity. When deciding at which level of government a right should be recognized, the question is fundamentally, on the matter of this right, are we Americans or residents of a state?

In overturning Roe, the Court majority has declared there is no federal right to choose whether to carry a pregnancy to term but each state can decide if such a right exists within its borders. Thus the Court majority declared that on this right, no one is an American.

Before the current Court majority, there were other justices who did not believe the federal constitution contains a right to choose, including the ones who reaffirmed Roe when they decided Casey. Those justices understood that whatever the written text of the constitution, that people had ordered their lives around the right to choose, that it would be too disruptive after 20 years to take away what people believed was a right they held as Americans because the same body had told them they did. Those justices exercised the principle of stare decisis that the current Court majority has declared it will not abide by, the principle that the law should not change just because the composition of the judiciary does.

Implicit in that doctrine is that once an unenumerated right — a right not explicitly listed in the constitution — is recognized by the Supreme court, that is a right we all have because we are Americans, The Supreme Court of the United States of America is the final arbiter in what the constitution says, and it told us the constitution contains a right to choose. It calls into question what other rights might soon be taken away.

This Court majority has abandoned stare decisis to reverse, and it is clinging to the framework of federalism — state sovereignty — both to justify cutting away a right and to salve the wound. To do so, the majority has wrapped Brown v. Board around themselves like a security blanket to convince us we have gained rather than lost a right. Horseshit.

When Brown reversed Plessy, it expanded a right. It took authority away from the states and in doing so said, in the matter before the Court, all Americans are, in fact and the law, Americans. Taking a personal choice and making it subject to legislative authority is the very definition of taking liberty away, of demoting a right to a privilege, of taking away a right. That’s what the Court majority did, and now, in its flaccid attempt to convince us that’s not what they did, that they actually expanded rights, the Court majority must either be deluded or thinks we are all deeply stupid or have amnesia.

The American people already had a right to choose under Roe and Casey. The majority didn’t give Americans more rights by putting the right to choose back into the legislative realm; it gave legislatures the authority to take away a right people already had. They are not the Brown court overturning Plessy. They are the Plessy court confirming states get to decide how the Americans within their borders are and thus what protections they are entitled to. Like Black people under Jim Crow trying to access education, so now are women trying to access healthcare. The majority’s is a twisted kind of federalism that places the sovereignty of states over both the sovereignty of the federal government and the sovereignty of the individual.

As the Court turns to state sovereignty to justify its action, it shows just how fundamentally it misunderstands American identity. If it believes we will vote with our feet and so sort ourselves into 50 nations managing to share a single government without trying to force our beliefs on each other, it divorces itself from past and present. Humans struggle so much to let others make their own choices, we needed a religious holocaust to invent sovereignty. Americans struggle so much to let other Americans make their own choices, we needed our own civil holocaust and the long, unfinished reckoning that followed to recognize that American rights cannot be left to the states to individually embrace, that to do so undermines the ability of Americans to be fully American, to fully belong to the American people.

Already, we’re seeing states getting creative in draft bills to extend their jurisdiction on abortion into other states, trying to twist their way around the very state sovereignty the Court is relying on, and meanwhile the Republican Party is vowing to ban abortion coast to coast as soon as it has the opportunity.

It is no coincidence that sovereignty was first recognized as the result of a religious war, that it is being so badly misapplied on what is a matter of religious belief for at least some of these justices and the vast majority of those favoring their decision, and that the party they align with is set on tearing sovereignty down between the federal government and states and between all governments and its citizens to serve a religious end.

In asserting the primacy of state sovereignty (or abdicating federal sovereignty — same effect), the Court revoked a right and seems to expect we’ll just accept it because they say so. Just as the founders did not accept they had only those rights recognized by the law, neither will the current generations. We will not accept that we only have those rights recognized by the law, a judicial oligarchy. We will not accept that a right once recognized by the law as belonging to all Americans can be revoked. We will not accept that stripping a right from the law strips that right from us. We will not accept the insulting and moronic idea that recognizing the rights of a person and turning over to the states the legal authority to criminalize the exercise of that right are in any way the same. We will not accept that any constitutional right can be transformed into a mere statutory prerogative at the mercy of a legislature. We will not accept that there is any such thing as a right possessed merely by virtue of residence. That is not how Americans conceive of what it means for a right to be a right or for an American to be an American.

It is our rights that make us Americans. Our identity as a nation stems from those rights and the the protection afforded them by the American government. There is nothing else, no other source of identity that can bind us as a nation-state, and countries lacking a cohesive national identity are inherently less stable. Without a federal government committed to protecting the rights the founders and their successors in Congress and the judiciary have said are ours, the endurance of a stable, free, American nation and American country are at risk. The Court is putting them at risk.

The written opinion itself and Thomas’s concurrence imply and expressly say this Court is not done deciding which rights Americans currently have that it might revoke. Not just the rights to contraception, intimacy, and the freedom to marry, but any right not explicitly written into the constitution or grounded in the Court’s subjective assessment of tradition at whatever arbitrary point in history the majority sets as a baseline. This majority has shown it will choose its own facts, twist history, narrow the reading of the constitution and the meaning of precedents or disregard them altogether to falsely and without license proclaim their traditions as our traditions in its attempt to claw back our rights and make them once again subject to legislatures. It has told us we may soon find that on an expanding array of our personal and civil rights, we are not Americans but Missourians and New Yorkers and Alabamians and New Mexicans.

We will not accept it. We are presently still one American people, and we demand the protections of our rights as Americans everywhere in America.

In overturning Roe and Casey, the conservative majority of the Court has declared it will cease to protect an American right and implied that it may soon cease to protect others, falsely believing state sovereignty will somehow hold us together, blind to why sovereignty was needed in the first place. American identity will continue to deteriorate if the Court continues on this path. If we stop being Americans, if the American nation disappears, if we find ourselves 50 nations and no longer one people, the American nation-state will not endure. Not in any form we now recognize or would want to live under.