Is the best way to handle all contentious social issues in a nation to allow them to be determined at a state or local level?
That appears to be the argument Louise Clegg is making in her latest piece for the Spectator “Refusing to Rule America“.
She cites approvingly the jurisprudence of the landmark Supreme Court case in Dobbs v. Jackson Women’s Health Organization. That 2022 decision famously determined that a right to abortion was not, in fact, found in the US Constitution – as previous rulings such as Rode v Wade had held – and that the proper place for the matter to be decided was in state legislatures.
This philosophy, Clegg believes, should serve as a guide for future cases such as the ones currently before the Court concerning transgender athletes right to compete in women’s sports (West Virginia v. B.P.J. and Little v. Hecox).
In her view, the correct approach should be to defer to states on what she calls “unresolved moral issues”. Thus, Idaho should be able to decide that biological men should not compete in women’s sports. But California would be free to decide differently.
The first point to note is that despite the supposedly new attitude praised by Clegg, the Supreme Court has been far from consistent. There has been a reluctance, for example, to reopen Obergefell v Hodges which in 2015 discovered a right to same-sex marriage in the constitution. That issue is apparently not something that the Court will allow Boise and San Francisco to agree to disagree on.
The second point is a technical one. I agree with Clegg that courts in the United States, Australia and elsewhere should in general avoid setting themselves up as a “moral arbiter of the nation’s deepest moral conflicts”. That is not their role. We would both, I suspect, be against a judicial activism which creates new novel constitutional rights like abortion or same-sex marriage, or God knows what our own Australian High Court might be cooking up.
However, this is very different from saying that the judiciary should as a general principle allow states to go their own way on all “social issues”, especially where it is reasonable to argue it is within the constitutional power of the federal government and has been voted on at a national level.
There are certainly plenty of examples where the American Supreme Court has allowed Washington to overrule state legislatures on social matters. For example, it has upheld national bans on bigamy in Utah (Reynolds v United States). It has struck down state laws preventing interracial marriage (Loving v Virginia). It famously issued rulings to assist with national efforts at desegregation in the southern United States (Brown v Board of Education).
Thousands of academic law articles have been written on these cases alone. Many, many, more on the proper relationship between the state and the national government in a constitutional federal system.
In an Australian context, Robert Menzies himself in retirement gave a series of lectures in the United States which were turned into a book “Central Power in the Australian Commonwealth”. He was far from doctrinaire on the question of states’ rights. The Howard government also saw no objection to legislating to prevent the Northern Territory from introducing euthanasia.
In short, simply saying “social issues” should be determined at the state level is not the answer.
Clegg is a constitutional barrister, and I am sure knows well this is all far more complicated than she makes out.
The main aim of her article really seems to be to take another rhetorical drive-by at the “new right”. Her piece contrasts the supposedly new attitude of the Supreme Court with what she calls “a strain of contemporary conservatism…in the US that seeks moral consolidation of the body politic through national authority and is explicitly intolerant of decentralising morality.”
As always in her attacks on the “new right”, it is hard to know who or what Clegg is referring to precisely.
One assumes she is referencing the “common good constitutionalism” movement advocated by people like Harvard Professor Adrian Vermeule and others. Amongst other things, these scholars do talk about “appropriate subsidiarity”, where the autonomy of local government is not given too much deference, but instead emphasises the proper role the central authority has in exercising its powers to promote the common good.
There is a reasonable debate to be had on this point.
We now live in an age where local councils in Australia seem emboldened to conduct their own foreign policy and fly Palestinian flags. Where state premiers ran amok during COVID. Where Tony Blair’s “devolution” in the UK has been far from an unalloyed success. Where cities in Minnesota refuse to cooperate with federal immigration law enforcement. In this context, surely there are limits to fetishising in an unqualified way what Clegg refers to as the “deeply conservative principle of subsidiarity”.
As many readers will know, I am fond of referring to the great parliamentary exchanges between Disraeli and Gladstone. They are useful in helping people in the political class in Australia understand the “new” right and also how political conservatism differs from classical liberalism.
But there is another rhetorical contest from the 19th Century which is also instructive and relevant. It was between, on one side, a powerful and brilliant man, the incumbent US Senator, Stephen Douglas. And on the other side, a seemingly washed up 49-year-old lawyer, named Abraham Lincoln.
The subject matter in their now famous Lincoln-Douglas debates was the issue of slavery. Douglas said he personally considered it “a great evil”, but argued that this moral question should be determined locally for “if the people of a Territory want slavery, they will have it, and if they do not want it, you cannot force it on them.”
Lincoln, by contrast, argued this was an issue of such significant national political, economic, and social implications that allowing states to do their own thing would not work. That on this particular question, “a house divided against itself could not stand”.
Now, not every social issue is akin to the question of black emancipation in America. But just as Lincoln was correct that the United States could not ultimately remain “half slave, and half free”, it is worth asking whether a nation can endure where, say, the mutilation of minors in the name of misguided gender therapy is permitted in one part of the country and not in another? Or where a man can compete against a woman in the pool in one state but not in a neighbouring one? Or where there is no commonly agreed definition of basic terms like “man” and “women”?
These and others are admittedly not easy questions, but there is no avoiding them. How they are handled will deeply influence our politics and nation’s future.
© Dan Ryan 2026. All Rights Reserved.
