Conflict of Constitutions? No Thanks: A Response to Professors Brilmayer and Kreimer

This colloquy was organized around the unpleasant hypothesis that the Supreme Court would overrule Roe v. Wade and that Congress would not fill the resulting void with federal legislation. The abortion debate would then move to the states, where local majorities could enact their own resolutions. If the local majorities were large enough, they could even write their local resolutions into their state constitutions. The contrasting state constitutions that could result might then replicate the comparativists’ current juxtaposition between the U.S. Constitution and the constitutions of Germany and Ireland. In some states, prohibition of abortion would be constitutionally required, while other states would give constitutional recognition to a woman’s right to choose.

Federal preemption principles and federal rights doctrines do not ordinarily distinguish between state statutes and state constitutional provisions as objects of federal displacement. That Brilmayer and Kreimer offer no separate analysis of such a variation on their hypotheticals is therefore understandable. But I hope to show that this . variation underlines some of the troubling aspects of territorialism, and particularly of Brilmayer’s proposals concerning preemptive grants of autonomy.