The leaked draft for a US Supreme Court ruling that could overturn the 1973 Roe v. Wade judgment has not only sparked, worldwide, an unseen amount of reaction on the substance of the matter – abortion rights – and related “ethical” issues, it has also propelled to the fore questions about political decision-making, the relationship between a majority and minorities, and the functioning of federal states. Neither in the United States nor in other countries these issues are unheard of.
Given the sensitivity that typically surrounds ethical matters, heightened passions may confound our understanding of the basic principles underpinning the functioning of our societies. Hence, it is good to take a moment to review the underlying questions, in order to somehow smoothen the debate and work towards better-informed decisions.
“Western” societies often use the word “democratic” as a kind of passe-partout term to refer to a series of systemic characteristics that a given country may display to a lesser or larger extent, such as the rule of law and separation of powers. However, a democracy is, in its basic meaning, a political system in which decision-making resides with the people (however one defines them), rather than with just one or a small group of political or religious leaders.
Inevitably, as not everyone within the “people” always agrees, democracy entails a system of vote-counting and decision-making by majority or plurality. As a result, the question arises how and to which extent minority opinions can and should be taken into account. Confronted with this often thorny issue, various states have developed different solutions, in particular if they count with separate national and/or linguistic groups. Belgium, Canada, Finland, South Africa, and India, for instance, have all implemented different structures, whether in a federal framework or not.
Indeed, federal systems in particular are designed to balance the powers of a state’s central institutions. This can be in response to majority/minority issues, but not necessarily or exclusively (see the case of Germany and Austria in the context of World War II). Federalism implies that the sovereign state comprises entities that, without enjoying full sovereignty, hold certain decision-making powers. The extent and scope of the latter are subject to variation (in time and space), while central powers retained at federal level usually include foreign policy and defense.
In the case of the United States, as in others, the historical context in which the federal system took shape does matter. When the thirteen original colonies cemented their path towards independence from Great Britain, their future political structure was all but a given. Looking back from 2022, one may be lured into the impression that the new country’s federal and state institutions were part of a neat design. However, economic and cultural differences were great and it took a tumultuous political and societal process (including about 80 “Federalist Papers”) to put in place the structures as we know them today, including the US Senate with two senators per state.
Since the creation of the United States, thus, divergences have existed and surfaced – with the Civil War as an explicitly salient moment – until today. For a long time, the image has been of an opposition between south and north; that, however, seems to be currently replaced, in a context of wider socio-economic developments, by a rural vs. urban dichotomy.
In any case, in a country as big as diverse, it is normal that profound political and legal divisions emerge. Still, even if one does not agree with a given position, or thinks it sets the nation on a dangerous course, it is important not to minimize or despise the groups or individuals who hold that position and advocate for it. In this particular case, the political and legal process to overturn Roe v. Wade has been in the works for years, but that action has availed itself of existing political and legal means. In such conditions, it is impossible, from an objective point of view, to claim that one’s opponents are misusing a system that does not make any sense. In case the “rules of the game” become a source of friction, all one could say is that time could indeed be ripe for a debate (and, if applicable, review), but not that the other party’s use of them is per se illegitimate.
Also, the “angry” minority is in reality not so small, neither in absolute figures nor in relative ones. It is true that the US presidents elected in 2000 and 2016 did not win the popular vote, however in it they lagged behind by only 1% or 2%, something which needs to be taken into account when discussing the demographics they represent.
Importantly, the reason different collectives are in the first place part of a bigger country are the power-sharing arrangements themselves, as the history of American independence shows. Denying the legitimacy of these very agreements amounts to fuelling the antagonism and, eventually, tearing the system apart.
Instead, beyond protest and civil action on the topics of concern (be they ethical or other questions), it is crucial to keep an eye on the political and societal structures for discussion and decision-making, and where necessary improve them. It is true that the difference between the US states with the largest and smallest population is much bigger in 2022 than it was in 1787. However, while further fine-tuning of a country’s set-up may be required, it is important to avoid that large groups are left with the feeling that an unacceptable decision is unfairly imposed upon them.
Such debate is surely not straightforward in times of modern media and mounting polarization, and all the less in countries with strong two-party traditions. Nevertheless, understanding past and present differences can only contribute to tackling them, rather than putting the blame for them on more or less sizeable minority groups, or on a system that oneself is part of and uses to one’s own advantage.
Dr. Alexander Loengarov is a visiting fellow at the international and European law program at Vrije Universiteit Brussel (Brussels, Belgium) and a former official of the European Economic and Social Committee of the European Union. At Vrije Universiteit Brussel, he coordinated the first rounds of the EU’s Erasmus Mundus External Cooperation Window scheme for academic mobility with Israeli and Palestinian institutions. He has published analysis for think tanks like the Washington Institute for Near East Policy and Israel Policy Forum, in addition to opinion pieces on Middle East and Israeli politics written for the Brussels Times. His writings reflect solely his own views, and not those of the European Economic and Social Committee or the European Union, which cannot be held responsible for any use made of it.