Amend, Don’t Bend

 

shutterstock_174496676Earlier this week, Instapundit Glenn Reynolds made some waves by arguing that a Congressional bill that would ban abortion after 20 weeks is unconstitutional:

The problem is that Congress is supposed to exercise only the powers enumerated in the Constitution, and those powers don’t include regulating state medical procedures. (The federal government lacks even the power to criminalize murder as such: All federal “murder” statutes punish murdering someone in the course of violating some other federal law because unlike states, the federal government has no general “police power.”)… If you scroll through the powers enumerated to Congress in Article I, Section 8 of the Constitution, you’ll find such things as establishing uniform rules of bankruptcy, raising and supporting armies and navies, and establishing post offices and post roads. What you won’t find is anything that supports congressional power to impose a time limit on abortion.

Both NR’s Ramesh Ponnuru and The Federalist’s Ben Domenech counter, arguing that the ban correctly cites the Equal Protection Clause of the 14th Amendment as the main source of its authorization. In part, Ponnuru argues:

The text of the [14th] amendment says “all persons,” does not define persons, and commits enforcement to Congress. If members of Congress have used their reason to determine that unborn children are, in truth, persons, the text seems to open the door for them to treat them as such for equal-protection purposes.

While I applaud the effort, this still strikes me as trying to read the text as saying something it clearly does not, as the full sentence reads to “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Unless you wish to argue that “born or naturalized” mean something other than their plain meaning, this seems like a stretch too far.

That the meaning of the Constitution is being stretched to make an argument is neither surprising nor necessarily alarming: as a future Vice President who knew a great deal about the legal profession once put it, “Law is whatever is boldly asserted and plausibly maintained.” In a legal dispute, both sides are entrusted with making the strongest plausible argument for their client and then letting the judge and/or jury decide what to do with it.

But when there is genuine and substantive ambiguity over a serious issue that’s more than a once-off, the proper remedy should be to seek to clarify the law, rather than stretch or contort it to mean what we want it to say, however logically or historically defensible the revision might be. If there aren’t enough suppositions to get to a good outcome, add some, either by amending legislation or, in rare cases, the Constitution. Besides avoiding the problem of having an unelected judiciary attempt to solve a genuinely unclear and controversial matter (as we saw in Roe and are likely to see again with same-sex marriage), this reduces the risks of snowballing silliness as one just-barely-plausible argument is later used to justify things no one would have expected (see, again, abortion and SSM).

The best model is the 19th Amendment, which explicitly overturned the male-only provisions of the Constitution (ironically, contained in the 14th Amendment) rather than try to finesse an interpretation that arrived at the right answer. That these kinds of controversies — from abortion, to marriage, to 4th Amendment issues — have persisted with so little serious effort put into clarifying things does not bode well for us.

Update: Ramesh responds correctly pointing out — as a number of members did — that the 1st section references “person” multiple times and that I quoted from the wrong one and I concede the point. Regardless, I’d still strongly prefer constitutional clarification on the matter (as pointed out by member Sal Padula), as fetuses generally weren’t considered persons at either the time of the Founding or the ratification of the 14th Amendment.

Published in General, Law
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  1. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    Isn’t this a bit academic?.  Reynolds argument is valid, and irrelevant given modern jurisprudence.  The government does regulate medical procedures, and will continue to do so.

    • #1
  2. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Reynolds is right. It’s no more an irrelevant academic argument than is continuing to maintain that the ACA’s individual mandate is unconstitutional.

    If anything, those of us on the Right should be hyper-vigilant about resisting the temptation to act unconstitutionally simply because doing so make it easier to achieve our policy goals. After all, we ostensibly care about constitutional fidelity.

    In any case, if we are going to mangle the Constitution in order to enact a federal ban, the equal protection argument is not the strongest available to us (as it requires explicitly ignoring the clear constitutional text). A stronger argument would be that such a ban is permitted by the current Commerce Clause jurisprudence.

    • #2
  3. Larry3435 Member
    Larry3435
    @Larry3435

    Well, there’s probably some Constitutional authority in a penumbra somewhere.  Or maybe in that old standby, the Commerce Clause.  Does that make sense?  Of course not.  But, as Frank said, that’s modern Constitutional jurisprudence.

    • #3
  4. Fake John Galt Coolidge
    Fake John Galt
    @FakeJohnJaneGalt

    Frank Soto:Isn’t this a bit academic?. Reynolds argument is valid, and irrelevant given modern jurisprudence. The government does regulate medical procedures, and will continue to do so.

    It is probably best is we gave up the fantasy that the constitution actually is the law of the land.  It is not, and the liberals know it.

    • #4
  5. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    Salvatore Padula:Reynolds is right. It’s no more an irrelevant academic argument than is continuing to maintain that the ACA’s individual mandate is unconstitutional.

    The question of whether the government can force you to engage in commerce is an unanswered legal one (even after the Obamacare case).  The question of whether a business can be regulated under any number of pretenses through the commerce clause is answered, even if wrongly.

    I do think its a bit academic.

    • #5
  6. Luke Thatcher
    Luke
    @Luke

    Frank Soto:

    Salvatore Padula:Reynolds is right. It’s no more an irrelevant academic argument than is continuing to maintain that the ACA’s individual mandate is unconstitutional.

    The question of whether the government can force you to engage in commerce is an unanswered legal one (even after the Obamacare case). …

    I do think its a bit academic.

    Maybe i have to double check. But, if we’re going to talk about enumerated powers… then I’m pretty sure it’s answered in the Supreme Law of the Land. The governmental power to force an individual to engage in commerce does not exist.

    • #6
  7. TG Thatcher
    TG
    @TG

    But if we *want* the Constitution to be the law of the land, we should act like we do (and not promote any of the extra-Constitutional nonsense).

    • #7
  8. Klaatu Inactive
    Klaatu
    @Klaatu

    I’m not sure. The phrase you cite, All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside seems to setting conditions for citizenship not personhood. That sentence is followed by, No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    I read the P&I clause as applying only to citizens (as defined in the first sentence) and the due process and equal protection clauses applying to persons regardless of citizenship.

    • #8
  9. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    Luke:

    Frank Soto:

    Salvatore Padula:Reynolds is right. It’s no more an irrelevant academic argument than is continuing to maintain that the ACA’s individual mandate is unconstitutional.

    The question of whether the government can force you to engage in commerce is an unanswered legal one (even after the Obamacare case). …

    I do think its a bit academic.

    Maybe i have to double check. But, if we’re going to talk about enumerated powers… then I’m pretty sure it’s answered in the Supreme Law of the Land. The governmental power to force an individual to engage in commerce does not exist.

    That’s the right answer, and it might have won in court by a 5-4 margin if Roberts had not bypassed the question.  Or the wrong answer may have become the law of the land.

    The law of the land is what is being enforced, not what’s written on paper.

    That said, a 20 week abortion ban is something for individual states to pass. It’s better that way for a number of reasons.

    • #9
  10. user_653084 Inactive
    user_653084
    @SalvatorePadula

    TG hit the nail on the head.

    I would go a bit further and say that support for this ban is pretty strong evidence that a large segment of the right sees constitutionally limited government less as a matter of principle than as a convenient pretext for opposing liberal expansions of the state which they happen to dislike.

    • #10
  11. user_5186 Inactive
    user_5186
    @LarryKoler

    Tom Meyer: While I applaud the effort, this still strikes me as trying to read the text as saying something it clearly does not, as the full sentence reads to “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Unless you wish to argue that “born or naturalized” mean something other than their plain meaning, this seems like a stretch too far.

    Well, if this is the only problem all we have to do is to amend this sentence and make it explicit to be what we want (this is our country, isn’t it?). Why didn’t you think of that? Or are you happy with the status quo and want to confirm it and dissuade the anti-abortion effort?

    • #11
  12. Mike H Coolidge
    Mike H
    @MikeH

    “All federal “murder” statutes punish murdering someone in the course of violating some other federal law ”

    It just happens to be convenient that living and breathing in the United States is synonymous with breaking federal law…

    • #12
  13. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    TG:But if we *want* the Constitution to be the law of the land, we should act like we do (and not promote any of the extra-Constitutional nonsense).

    This is a long conversation, but I hate unilateral disarmament.  Take the issue of the nuclear option in filibusters.

    The democrats broke well established traditions in bypassing a cloture vote on lower court nominees.  The Republicans are right to argue it shouldn’t have happened, but are wrong if they do not engage in the exact same behavior now that the new normal is established.

    The democrats will bypass cloture votes on lower court nominees going forward.  The damn is broken.  If the Republicans do not do the same, they cede the battle field slowly to left as it will mean the courts on the whole will be less and less conservative.

    Switching back, if the Republicans act as though the past 80 years of case law on the commerce clause is invalid without actual steps to reverse it, they are allowing the left to never feel the pinch of regulation, while the left uses it in an unfettered manner.

    Again, a 20 week abortion ban should happen at the state level for a number of reasons.

    • #13
  14. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Larry Koler:

    Tom Meyer: While I applaud the effort, this still strikes me as trying to read the text as saying something it clearly does not, as the full sentence reads to “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Unless you wish to argue that “born or naturalized” mean something other than their plain meaning, this seems like a stretch too far.

    Well, if this is the only problem all we have to do is to amend this sentence and make it explicit to be what we want (this is our country, isn’t it?).

    That’s pretty much what I’m suggesting.

    Larry Koler:

    Why didn’t you think of that? Or are you happy with the status quo and want to confirm it and dissuade the anti-abortion effort?

    Well, since you asked me personally, my prime interest in the matter is overturning Roe. After that, I’d support both statewide and/or federal amendments defining abortion after 10 weeks as homicide.

    • #14
  15. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Frank- If one accepts the argument you laid out in #5 pretty much all legal questions are academic. I don’t necessarily disagree with that general characterization. I just don’t think that this specific legal question is particularly more academic than most others. It most certainly isn’t more academic than the average question of constitutional law.

    • #15
  16. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    Salvatore Padula:Frank- If one accepts the argument you laid out in #5 pretty much all legal questions are academic. I don’t necessarily disagree with that general characterization. I just don’t think that this specific legal question is particularly more academic than most others. It most certainly isn’t more academic than the average question of constitutional law.

    My problem with Reynolds argument compared to other questions (such as the ACA mandate question) is that there is no path to re-establishing a standard of strictly enumerated powers.

    • #16
  17. Aaron Miller Inactive
    Aaron Miller
    @AaronMiller

    Had the founders imagined that medically facilitated abortions would become common, they might have used different wording.

    They obviously did not intend “born” as a distiction from “not yet born”. Rather, they were referring to people born here as opposed to people born elsewhere.

    The question of abortion is essentially the same as the question of slavery: Are all human beings equally and inherently deserving of legal protections? Claiming that the Constitution protects unborn children is at least no more of a stretch than the claim that the Constitution protects blacks, which the founders obviously did not agree to.

    We can debate the definition and significance of personhood. But there is a clear and powerful precedent for expanding the application of Constitutional protection to a broader collection of persons.

    • #17
  18. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Larry: “Well, if this is the only problem all we have to do is to amend this sentence and make it explicit to be what we want (this is our country, isn’t it?). Why didn’t you think of that? Or are you happy with the status quo and want to confirm it and dissuade the anti-abortion effort?”

    Two points:

    1) When debating the constitutionality of proposed legislation it isn’t much of an argument to say that it would be constitutional if we only amended the Constitution.

    2) As long as we’re going to amend the Constitution, wouldn’t it be simpler to just pass an amendment banning abortion? It would avoid all the collateral problems redefining “person” to include fetuses would create.

    • #18
  19. user_836033 Member
    user_836033
    @WBob

    As Klaatu said above, Yes it defines a citizen as a person already born.  But the definition of citizenship isn’t the issue.  It then says:

    nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    It doesn’t restrict those protections to citizens.  All persons, citizens or aliens, born or unborn, are protected.  At least that’s the argument.

    • #19
  20. user_86050 Inactive
    user_86050
    @KCMulville

    Salvatore Padula:If anything, those of us on the Right should be hyper-vigilant about resisting the temptation to act unconstitutionally simply because doing so make it easier to achieve our policy goals. After all, we ostensibly care about constitutional fidelity.

    Fine. So … when the Left acts unconstitutionally to achieve their policy goals, what exactly should we do about it?

    I’m willing to agree that a ban on abortion after 20 weeks is as much a violation of constitutional principles as was the federal legalization of abortion in the first place. But I reject any approach that says I have to abide one unconstitutionalism but not another. If they’re not going to the play the game honestly, there is no logic that forces me to.

    • #20
  21. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Frank: “My problem with Reynolds argument compared to other questions (such as the ACA mandate question) is that there is no path to re-establishing a standard of strictly enumerated powers.”

    I would argue that, rather than there being no path to reestablishing the doctrine of enumerated powers, the main obstacle is that there is no popular desire to do so. If Republicans had a filibuster proof majority in the Senate (or simply abolished the filibuster), a bare majority in the House, and the Presidency the only thing stopping them from repealing almost every unconstitutional expansion of the state would be their own reluctance to do so.

    • #21
  22. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    KC Mulville:

    Salvatore Padula:If anything, those of us on the Right should be hyper-vigilant about resisting the temptation to act unconstitutionally simply because doing so make it easier to achieve our policy goals. After all, we ostensibly care about constitutional fidelity.

    Fine. So … when the Left acts unconstitutionally to achieve their policy goals, what exactly should we do about it?

    I’m willing to agree that a ban on abortion after 20 weeks is as much a violation of constitutional principles as was the federal legalization of abortion in the first place. But I reject any approach that says I have to abide one unconstitutionalism but not another. If they’re not going to the play the game honestly, there is no logic that forces me to.

    This is essentially the argument I was trying to make above.  I’m generally against tying your own hands in a fight when the opponent’s will not be similarly bound.

    None of which means I want this particular federal law to be passed.  I keep repeating that because someone is eventually going to claim that I want it passed.  Let the states do this.

    • #22
  23. Ricochet Inactive
    Ricochet
    @bridget

    In Carhart II, Congress justified the ban on partial-birth abortion by applying it only to instruments, etc., that have passed through interstate commerce. IIRC, Antonin Scalia said that he would have been receptive to a constitutional argument against the ban on grounds of Congressional authority to enact.

    That said, some of the Insty commenters made a good point: abortion has been a federal issue since 1973. Once the Supreme Court said that the federal constitution speaks to abortion rights, it started to make sense for Congress to be an appropriate body to push back on that.

    I also seem to remember an analysis showing that the Supreme Court is more likely to uphold Congressional bans on activity than state bans.

    • #23
  24. user_86050 Inactive
    user_86050
    @KCMulville

    Salvatore Padula:I would argue that, rather than there being no path to reestablishing the doctrine of enumerated powers, the main obstacle is that there is no popular desire to do so.

    If it’s all just politics anyway, what do we need the Constitution for?

    I’m not trying to put you on the spot, Sal, but if anyone can make a case, it’s you.

    • #24
  25. Mendel Inactive
    Mendel
    @Mendel

    The heart of this question is a simple proposition we run circles around on Ricochet (and elsewhere) but never address directly:

    Do you think the ends matter more than the process?

    We all think that the ends and the means are important. But the other side doesn’t. And when they violate the agreed-upon process, it poses us the simple dilemma: stick to our principle that process matters and thereby unilaterally disarm, or fight using the opponent’s method but lose the moral high ground and violate one of our central tenets of governance?

    That’s really all this boils down to: do you think the ends justify the means?  And any individual’s reaction the question is probably more a reflection of their underlying personality than any rational argument (full disclosure: I’m means>ends).

    • #25
  26. Mendel Inactive
    Mendel
    @Mendel

    KC Mulville:

    Salvatore Padula:I would argue that, rather than there being no path to reestablishing the doctrine of enumerated powers, the main obstacle is that there is no popular desire to do so.

    If it’s all just politics anyway, what do we need the Constitution for?

    This question deserves it’s own discussion.

    I think conservatives hide too much behind the Constitution. Even though the Constitution is officially in force, nobody alive today actually agreed to it. While we agree that it should remain the law in the land, every generation needs to re-convince itself of the wisdom of respecting the Constitution.

    • #26
  27. user_989419 Inactive
    user_989419
    @ProbableCause

    bridget:That said, some of the Insty commenters made a good point: abortion has been a federal issue since 1973. Once the Supreme Court said that the federal constitution speaks to abortion rights, it started to make sense for Congress to be an appropriate body to push back on that.

    My sentiments exactly.

    However, if we want both outcomes — push back on a.) the Court’s result and b.) the federal overreach, then I suppose Congress should pass a law that somehow vacates Roe v. Wade and returns the power to the states.

    • #27
  28. user_5186 Inactive
    user_5186
    @LarryKoler

    Salvatore Padula:Larry: “Well, if this is the only problem all we have to do is to amend this sentence and make it explicit to be what we want (this is our country, isn’t it?). Why didn’t you think of that? Or are you happy with the status quo and want to confirm it and dissuade the anti-abortion effort?”

    Two points:

    1) When debating the constitutionality of proposed legislation it isn’t much of an argument to say that it would be constitutional if we only amended the Constitution.

    This is our country and if we find we are bumping up against a part of the Constitution that we as a country don’t like then since it’s our country AND our Constitution we can and should do whatever the heck we want.

    2) As long as we’re going to amend the Constitution, wouldn’t it be simpler to just pass an amendment banning abortion? It would avoid all the collateral problems redefining “person” to include fetuses would create.

    Well, my point was to get Tom to clarify his position. (Tom, my fault here entirely — if I had read your whole post more carefully I would have seen that you were indeed suggesting the same thing I was.)

    • #28
  29. user_86050 Inactive
    user_86050
    @KCMulville

    Mendel:

    While we agree that it should remain the law in the land, every generation needs to re-convince itself of the wisdom of respecting the Constitution.

    Agreed.

    For me, the issue is the interplay between the constitution and politics. The Framers set out the Constitution, but they embedded ways to amend it that depend on politics. If you don’t like the current constitution, there’s a political remedy to fix it.

    That’s why the Griswold/Roe adventure is so dangerous. The “emanations and penumbras” logic is based squarely on what five lawyers believe are “civil rights,” with no appeal and no procedure to dispute them. It’s a tactic that has no absolute support in the text of the constitution and therefore has no remedy. It’s literally an assertion of power without any chance of opposition.

    And then, as they did in Casey, they argued that even if you replaced the old justices with new ones – a political solution – the new justices were duty bound with stare decisis to uphold the old justices’ rulings.

    That’s purely an exercise of power, not an exercise in justice.

    Which is not what we agreed to when we ratified the Constitution.

    The Constitution is an agreement between the government and people on what kinds of powers the government can wield. If they don’t abide by the agreement, the contract is null.

    • #29
  30. Spin Inactive
    Spin
    @Spin

    Tom Meyer, Ed.:

    Larry Koler:

    Tom Meyer: While I applaud the effort, this still strikes me as trying to read the text as saying something it clearly does not, as the full sentence reads to “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Unless you wish to argue that “born or naturalized” mean something other than their plain meaning, this seems like a stretch too far.

    Well, if this is the only problem all we have to do is to amend this sentence and make it explicit to be what we want (this is our country, isn’t it?).

    That’s pretty much what I’m suggesting.

    Larry Koler:

    Why didn’t you think of that? Or are you happy with the status quo and want to confirm it and dissuade the anti-abortion effort?

    Well, since you asked me personally, my prime interest in the matter is overturning Roe. After that, I’d support both statewide and/or federal amendments defining abortion after 10 weeks as homicide.

    Ok.  I’m on board.  Let’s stop talking about it and make it happen.  What are the next steps?

    • #30
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