What Is Government For?

As readers of this blog know, I spent 21+ years teaching Law and Public Policy, mostly to students intending to go into either public management or the nonprofit sector. The faculty of our school was heavily engaged in imparting skills–budgeting, planning, human resource management, policy analysis.. But my classes tended to be different, because these practical subjects didn’t emerge from a void; they are inextricably bound up with our constitutional system, and that system in turn is the outgrowth of great philosophical debates about the proper ordering of human communities. 

The great questions of political theory involve the nature of government. What should government do? What actions by the state are legitimate? What is justice? What is public virtue? 

The American experiment was heavily influenced by the philosophy of the Enlightenment and emerging theories about the proper role of the state, especially the principle that Individuals are entitled to live their lives as they see fit, until and unless they are thereby harming the person or property of another, and so long as they are willing to extend an equal liberty to others.

The primary role of government so conceived is to prevent some citizens from harming others. (Granted, there are inevitable arguments about what constitutes harm to others, and what degree of harm is needed to justify governmental intervention.) 

The Bill of Rights expressly limits the ability of government to regulate activities that are purely personal. What we read, whether we pray, our politics and beliefs and life goals are matters for individual decision.

It is that basic American principle of governance that is now at issue.

The decision in Dobbs wasn’t simply about abortion; it attacked a jurisprudence that had become increasingly protective of maintaining that line between individual rights and the legitimate exercise of government authority.

What too many Americans fail to understand is that the question posed by Dobbs isn’t whether a woman should or should not abort. It’s also whether citizen A should be able to marry someone of the same gender, or whether citizen B should bow her head and participate in a public prayer.

The issue is: who gets to make such decisions?

We are properly concerned these days about the functioning of democracy, and whether our lawmakers are reflecting the will of their constituents when they vote on the numerous matters that government must decide. But the arguably radical Justices on today’s Supreme Court have raised a more fundamental issue, because the Justices are authorizing government to legislate matters that government in our system is not supposed to decide.

The Bill of Rights draws a line between state power and individual rights. Legislators don’t get to vote on your fundamental rights: to free speech,  to pray to the God of your choice (or not), to read books of your own choosing, to be free of arbitrary searches and seizures, to cast votes in elections…

Even when lawmakers are reflecting the will of the majority, in our constitutional system they don’t get to deprive people of fundamental rights.

Ever since Griswold v. Connecticut, in 1965, the United States Supreme Court has acknowledged that personal autonomy–the  individual’s right to make “intimate” personal decisions–is one of those fundamental rights. The doctrine of substantive due process, often called the right to privacy, is shorthand for the recognition that in a free society, certain decisions are not properly made by government. The doctrine answers the question “Who decides?” by drawing a line between the myriad issues appropriate for resolution by majorities acting through government, and decisions  that government in a free society has no business making.

As I’ve argued before, the ruling in Dobbs didn’t simply mischaracterize history in order to impose a minority religious belief on all Americans. It attacked the rule that restrains government’s intrusion into all aspects of our private lives. Its “reasoning” would allow other fundamental rights–to bodily autonomy, to the choice of a marriage partner, to decisions about procreation– to be decided by legislatures chosen by “democratic” majorities.

Unless you are prepared to argue that an individual’s right to make those very personal decisions is not a fundamental constitutional right, allowing abortion and contraception and same-sex marriage to be decided by government is no different from giving lawmakers the right to dictate my choice of reading material, or your choice of religion.

The issue isn’t what book you choose–it’s your right to choose it. It isn’t whether you’ll marry person X or Y, it’s your right to choose your marriage partner. And it isn’t whether you abort or give birth–it’s about who has the right to make that decision.

Government paves streets, issues currency, imposes taxes…it has plenty to do without upending America’s foundational philosophy.


  1. Well, of COURSE Dobbs was intrusive on personal choice and freedom to live without harming another sentient being. Look who wrote it. Look who picked these Koch-funded Federalist ideologues to make such egregious rulings. Look who lied after their confirmation hearings. What else would you expect from fascist judges appointed by Republican Presidents?

    The rule of law, to these right-wing instruments of anti-democracy, is merely the excuse they use to impose their will and ignore the word and spirit of the Constitution and the SCOTUS’ own history. As with Hitler’s Germany, nothing will be allowed to stand in the way of the march toward outright fascism.

    Yes, the Electoral College needs to be sent to the ash heap of history because the reasons for its creation no longer exists. And to make up for the disgusting appointments by the least-qualified President in our history, the court must be expanded in number until the fascists are gone from it. Of course, that will take a filibuster-busting Senate and a large majority of Democrats in the House. If we don’t facilitate this repair, I fear all will be lost to the lunatics like MTG and Boebert and Gaetz and Cosar, et. al.

  2. What is facism? To me it is the subordination of the individual in order to subvert the national good. The Supreme court under the leadership of a black Republican just shut down on June 8th the administration of a social anti-racist gerrymandering scheme. We have seen anti- individualism and the calling of parents as being domestic terrorists if they dont agree with books that sexualize young kids, my parent was my guardian, you can even watch Kindergarten Cop, to get the gist that teachers are supposed to help raise kids and not indoctrinate them with books that confuse kids. Something I didnt think about until my parents sent back a permission slip in the sixth grade.
    Tes there is an order to our communities, but the comments of an administration like the one we have now point to the fact we dont want one party rule by rliminating the electoral college. We are a democratic republic that allows commmunities from separate states to have control. If we abandon the individual, it will be like Huey Ling stated” Facism will be ushered in under the guise of socialism. In the last teo decades it has been the left that has surprisingly ushered in rulings taking away property ghat advanced the building of businesses not just governmental use alone they say would advance ghe community. It takes liberals and conservatives to keep each other in check. It takes strong persoanal leadership that reaches across the aisle. Maybe what we dont need is lifetime politicians that claim they are for democracy bur implement policies that destroy families and the working class.
    Government should be run at the grass roots kevel, wher people understand the needs of the person and not from rich bankers who claim they are foe democracy then short sell markets in the backs of the working mans investments.

  3. Dobbs didn’t impose a “minority religious belief on all Americans.” It imposed no belief whatsoever. That’s the whole point of Dobbs. Dobbs said that there is nothing in the Constitution that decides the issue of abortion, especially nothing that imposes a particular framework that Roe did, a framework that was disingenuously made up out thin air. Dobbs was about turning the abortion issue back to the people to decide through their democratically-elected legislative bodies. Some legislatures would expand abortion rights even more than Roe. Some legislatures would restrict abortion rights much more than Roe. That’s how American democracy works.

    I keep coming back to the point that in most industrialized countries, the issue of abortion has been decided through democratically-elected legislatures, not the courts. And most of those legislatures has settled on a about 15 week gestational limit to abortion, usually with the commonly-cited exceptions. The framework imposed by Roe required that abortion be allowed very late in the pregnancy, goes far beyond what most legislatures in other countries have deemed wise. England and Canada allow abortions as late as Roe did, but they are in a distinct minority. Even in the United States, strong majorities oppose second trimester abortions.

    I don’t agree with linking abortion rights with religion. Religion had nothing to do with the decision in Roe or Dobbs. There are plenty of atheists who oppose abortion and plenty of religious people who support it My view on the issue was shaped by experience in college in a health science class when we studied pre-natal development. After that experience, I saw a fetus as much more than a blob of cells and believe that it is deserving of legal protection much earlier than what Roe allowed for. A reasonable gestational limit is going to be drawn in most states and I think that’s going to be about 15 weeks…which would still allow for about 95% of the abortions that currently take place.

  4. If you believe that a fetus is a person, than you are trying to prevent one person, i.e., the mother, from harming another. Not my viewpoint, but isn’t that the thinking?

  5. “What Is Government For?”

    “The Bill of Rights expressly limits the ability of government to regulate activities that are purely personal.”

    The U.S. Constitution is written and outlined in the three branches, Legislative, Executive and Judicial, so that no one branch of government has full control. The failure can be found in the fact that there is no governing control to ensure the elected and appointed officials in any branch are required to maintain their individual Oaths of Office. They certainly will not impeach themselves or their supporters. They are now regulating activities to meet their personal needs and wants and deregulating laws which protect individuals; government regulation of activities are all on the auction block to the highest bidder along with the candidates for all three branches. Picture (using your most vivid imaginations) what condition the government and the nation would be in today had only Senator Mitch McConnell been forced to uphold his repeated Oath of Office as a United States Senator.

    “The issue is: who gets to make such decisions?”

  6. IMHO, Dobbs is wrong because it upends Amendment IX: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The right to control your own person is pretty essential, or at least it seems so from the language of Amendment IV. Dobbs doesn’t mention religion, but instead, harkens back to a time when witches were burned at the stake, or given the ultimate test of guilt, that is: Tie her, fully clothed, to a chair and throw her into the water. If she lives, innocent. If she dies, guilty.

  7. The development of a fertilized egg into a person is a continual process. Drawing a line across it and declaring that it is a person on one side of the line and not on the other is always going to be arbitrary and often depends on one’s religious beliefs. This is the best argument I know for leaving the decision for or against abortion up to the mother and her medical advisor. I don’t see any justifiable reason for the government to make that decision for them.

  8. Paul O. – “the people” should NOT decide my reproductive choices. (“The people” in the South used to overwhelmingly support slavery!) If I don’t want to incubate a zygote or an embryo, I shouldn’t have to because other people think it’s not right to abort. And abortion IS linked to religion despite your weak arguments. It wasn’t even an issue until AFTER Roe when Republicans wanted to expand their base and made a concerted effort to win over Catholics, who are very anti-abortion (historically), and up until that point tended to vote Democratic. That’s when the evangelicals jumped on board as well encouraged by higher ups who saw an issue to fire them up. Yes. individually there are many viewpoints by many people, but to say abortion rights are not linked to religion is a laugh!!

    Except I am NOT laughing.

  9. My guess is that most people don’t realize there was a two-year hiatus between adoption of the Constitution and adoption of the First Ten Amendments (the “Bill of Rights.” The Bill of Rights was designed to limit government, not expand it, and the Supreme Court has yet to explicitly recognize the inherent rights of women to be in control of their bodies. Yes, it is not in the Constitution in so many words (as Paul suggests), but neither does the Constitution explicitly give government the authority to regulate jet planes or safety features of atomic plants.

    We are thus left not to words but construction of old words in light of new realities given certain political and religious backgrounds of those in charge of construction, and it seems to me that the Supreme Court has decided to legislate with such as Dobbs, Shelby, Citizens United and other such atrocities that meet neither the Madisonian ideal of tripartite government and/or today’s will of the people.

  10. Vernon – thanks for your comment. Coming from you, it is high praise. I admire your scholarship.

  11. I don’t know how many times I have to repeat this :
    Corpses have more rights than women!

    I want to say that this on-point blog post today is just the kind of summary needed to defend my view about government. I really appreciate the topic and how well it is presented. Those anti-government shouters need to be neutralized and this post is an excellent review of the need for government. Thanks.

  12. I just received a news item on my cell phone stating that “Vice President Kamala Harris has the lowest Vice Presidential rating in the history of NBC Vice Presidential polls”. Her co-emceeing the “Reid Out” with Joy Reid recently on the abortion issue brought out many points of view not considered by those opposing or supporting that particular issue. She is qualified to do the same on the vast number of issues this nation faces today.

    I have believed since her inauguration that she is being under-used in her position as Vice President; probably due more because she is a woman than any other excuse to keep her in the background…or keep us uninformed. We lost a powerful Senator when she left to run as Joe Biden’s Vice President; and was a strong aid in getting votes from women, Blacks and Asians. Her performance in the U.S. Senate proved she has the qualifications, experience and the ability to bring a strong performance to the Executive Branch and to aid the president in the current low polls. There is a Vice Presidential need in this government other than waiting in the background for something to happen to the president.

    As Vernon so aptly stated; “The rule of law, to these right-wing instruments of anti-democracy, is merely the excuse they use to impose their will and ignore the word and spirit of the Constitution and the SCOTUS’ own history.” Using Vice President Kamala Harris would make a strong statement for democracy and set a precedent to strengthen the word and the spirit of the Constitution and strengthen the non-religious position of women sitting in judgement in all levels of the judicial system before cases reach SCOTUS to offset the Catholic stronghold from forcing judgments such as the Dobbs decision on all rights lost in that dangerous religious takeover. A State issue which should not have reached the Supreme Court to effect the entire nation. Women are still battling to be recognized as equals; resolving his issue is one answer to “What Is Government For?”

  13. Just like the positive value of the separation of church and state, the separation of individual
    rights, as per the “Bill of Rights,” as those first 10 amendments are called, rather than the
    “Bill of Wrongs,” from the reach of gov’t need to be upheld or we loose “A republic,” as Franklin is supposed to have said.
    Our government’s job is to see to it that its people can live, and let live, as Sheila said so much
    better than that.

    Christopher Hitchens has been quoted as saying that “Religion spoils everything,” and our GQP, and right-wing SCOTUS folks are proving him right.

  14. All difficult decision making occurs in gray areas. If the best course of action is black and white so is the choice among alternatives.

    So, who should decide the rights of a fetus to life that may or may not work out in its favor versus the rights of pregnant women about their future?

    Whose future is best protected by people who aren’t either of the parties the decision to continue pregnancy impacts?

    In that gray area I can’t imagine that people not affected will render a better decision than the mother. As a mother she will surely consider the needs of the fetus as well as her own. She’s the one relied on to do that for decades after birth. If she’s not qualified to consider the future of her babies, does society really benefit from her pregnant?

  15. So. many. infuriating. comments. I’m not up to the argument today.

    Peggy, I did want to note that your witchcraft test is backwards. If the woman sinks and drowns, then she was innocent. If she floats, it indicates witchcraft, so she is guilty, and burned, presumably.

  16. Brava Kathy M

    Now – let’s get down to it
    The government can protect the many; the government can protect to property rights of the rich.
    Some people (love that term, but it is true) have told me that the only legitimate parts of government are the military and the courts. They rest of government should do as little as possible. Of course, those same people believed in the almighty power of the “invisible hand” — and they weren’t referring to a deity.

    Others (sometimes the same) opine the the Ninth Amendment means that if it isn’t explicitly in The Constitution, the state legislature should decide. All rights that individuals have are spelled out. They also believe that the first half of the Second Amendment is window dressing.

    I am afraid that whenever my friend Paul hears “rights”, he somehow thinks that some of those “rights” should be at the whim of state legislatures, but again, the Ninth Amendment is ambiguous and doesn’t say what belongs to the states and what to individuals, so Paul, and the courts can interpret that divide as they like. I’m not a legal scholar, just a philosophy major, retired scientist.

    Of course, some courts believe that the States have the right to legislate whatever their citizens do, no matter where they are (see a prostitute in Nevada – crime; have an abortion in another state – serious crime; etc.), or have one state determine what medications can be prescribed nationwide, even though the judge wouldn’t know a molecule if he was bit by one.

    Paul, I am sorry – the Supremes “left it to the states” knowing that “the states” would try to impose national standards. I also never believed that Vapping was anything other that an attempt by the tobacco industry to addict a new generation to nicotine, but the government decided to treat it as “normal business” while still banning marijuana. No matter what they claim, the Supremes knew what they were doing. Don’t do it nationally; use death by a thousand, state level, cuts — and there are deaths.

    One last point on language – why is it that whenever I hear “personhood” my mind says “they mean it has a soul”? Religious? Yes, at its core, even when filtered. I’m an agnostic, but I would never claim that my Jewish upbringing didn’t shape my belief system.

  17. Dobbs lied about history. In the early 1970’s the US Air Force, part of the federal government, REQUIRED ABORTIONS. A pregnant female service member could either have an abortion or be drummed out of the Air Force. And the Air Force facilitated abortions by transporting patients to base hospitals where the procedure was preformed regardless of state laws.

    (Male service members could have all the pregnancies they wanted as long as the pregnant woman was not a service member.)

    Dobbs completely ignored this in its summary of history.

  18. I believe that Thomas is aiming at interracial marriage as his ultimate goal because that is the only way he can legally get rid of Ginni…

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