Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Amend, Don’t Bend
Earlier 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
Aaron: “Had the founders imagined that medically facilitated abortions would become common, they might have used different wording.”
I’m not sure that’s the case for the founding period. There is fairly strong evidence that the Founders did not consider fetuses full persons. At the time of ratification abortion was certainly not unknown and the new nation and all of its constituent states addressed the matter pursuant to the common law. Under the common law abortion was not a crime until the quickening and was considered a misdemeanor post-quickening. Considering that infanticide is a common law felony, it seems likely that the founding generation considered birth to be the sine qua non of full personhood.
That said, the relevant period for the wording of this particular text is not the founding, but the late 1860’s. For that period the evidence is a bit more equivocal. On the one hand, an increasing number of states had passed laws criminalizing at least some abortions and some treated it as a felony. On the other hand, there actually was a thriving commercial abortion industry at the time with abortifacients even being advertised in many women’s interest publications, so the drafters of the 14th Amendment were likely aware of the issue. Also, the majority of states continued to distinguish between pre- and post-quickening (though pre-quickening abortion was increasingly criminalized). Finally, it is worth noting that until relatively recently laws criminalizing abortion (even as felonies) were usually enacted either as public health provision or as regulation of medical practice and not as a form of homicide; again suggesting that a fetus was not considered a person.
I think you are partially right. I oppose the Congressional proposal because I do not think Congress has the authority to act in this area under a proper reading of the Commerce Clause and believe it dangerous to support something that violates the Constitution even though I favor the outcome as policy and would gladly vote in favor if I were a state legislator.
It is also academic because if enacted the opposition will not challenge it on Commerce Clause grounds. The only thing more sacred to today’s progressives than an unfettered right to abortion at any time and place is the interpretation of the Commerce Clause that allows the federal government to do anything it chooses. They do not want to create any judicial precedent restricting the ability of the feds to act unhindered.
Actually, the full quote from Section 1 of the Fourteenth Amendment reads as follows:
There are two sentences here. The first sentence guarantees citizenship for all persons born or naturalized in the U. S. The second sentence has three clauses: the privileges and immunities clause, which is applied to citizens, and the due process and equal protection clauses, which are applied to persons. Not persons “born or naturalized,” but simply persons.
I have to admit that while I’d love to get back to a ‘strict cinstructionist’ framework, I’m with Frank Soto on this and am against ‘unilateral disarmament.’
We have to deal with the world as we find it. Stretch away.
Besides, if we want the Left to change their ways, game theory indicates that in repeated games, Tit-For-Tat strategies dominate.
What was the highest number of likes we can add? That many for this.
I need to mull over this, but it’s a fair rejoinder.
UPDATE: See Sal’s comment; if anything, this seem to me to further call for explicit clarification via amendment.
BW (#19 above) and bagodonuts (#33 above) are absolutely correct in pointing out that the “persons born or naturalized” language of the 14th Amendment appears in a different sentence than the due process and equal protection guarantees, which apply to “persons” and is not restricted by the “born or naturalized” language in the prior sentence.
I will point out one thing further: the due process clause applies even to “fictional” persons — i.e. corporations and similar legal entities. In a case in 1888 — that is not a typo, I mean 1888, during the first term of Grover Cleveland — the Supreme Court explained that in the 14th Amendment due process clause, “[u]nder the designation of ‘person’ there is no doubt that a private corporation is included.” [Pembina Cons. Silver Mining Co. v. Pennsylvania.]
KC: “If it’s all just politics anyway, what do we need the Constitution for?”
That’s a very good question. I’ll do my best to answer it.
First, I would say that the Constitution is not strictly necessary for the maintenance of a properly limited government. Rather, it has been a remarkably useful means to achieving that end. So when I suggested that it would be perfectly feasible to restore the federal government to the limited enumerated powers outlined in the Constitution if only we had a few more votes in the Senate, the presidency, and the will to do it I was not claiming we could restore proper constitutional jurisprudence so easily.
I’m personally rather pessimistic about the the possibility of repairing the damage done to our constitutional order over the last century, but that does not mean that I think it unimportant to make every effort to preserve that which remains of proper constitutionalism. I certainly don’t think that we should be actively contributing to further constitutional decay.
Despite my pessimism about the prospects of restoring those bits of the Constitution which have been lost, I think it’s clear that even in its current form, the Constitution remains a vitally important bulwark against the rise of progressive totalitarianism. Imagine, for a second, what things would be like without the constitutional protections enshrined in just the first and second amendments (both of which have been experiencing something of a renaissance over the last few decades). At the very least, it seems likely that tens of millions of Americans living in deep blue states would be subject to speech codes and gun laws which today are found only in Western Europe and on Americas college campuses. If you think religious liberty is under attack now, consider what it would be like absent the establishment and free exercise clauses. If you think our trade and agricultural policies now are a mess, imagine what things would be like if the commerce clause did not prevent each state from engaging in protectionism against all the others.
In short, I would summarize my approach to the Constitution by quoting Buckley’s line that “The role of a conservative is to stand athwart history yelling stop.” Even if the obstacles to going back prove to be insurmountable, that which remains is very much worth preserving.
Despite my # 37 above, I think that the OP is correct in the ultimate conclusion that Congress could not justify a national anti-abortion law based on the 14th Amendment Due Process Clause. The problem is that, under SCOTUS precedent, Congress cannot expand Constitutional protections beyond the actual scope of the Constitution itself, as interpreted by SCOTUS.
This follows from City of Boerne v. Flores, the 1997 SCOTUS case that struck down RFRA as applied to the states. The majority’s reasoning is complex, but it essentially held that Congress cannot use the enforcement power under the 14th Amendment to protect against state actions that are not, themselves, violations of the 14th Amendment:
SCOTUS has held (in Roe v. Wade) that the unborn are not “persons” for 14th Amendment purposes. Therefore, under City of Boerne, Congress could not expand the scope of the 14th Amendment to protect the unborn.
Bag: “There are two sentences here. The first sentence guarantees citizenship for all persons born or naturalized in the U. S. The second sentence has three clauses: the privileges and immunities clause, which is applied to citizens, and the due process and equal protection clauses, which are applied to persons. Not persons “born or naturalized,” but simply persons.”
You’re absolutely correct as to the precise text in question, but if you’re taking an originalist approach to constitutional textual interpretation I still don’t see how you get around the fact that the time the 14th Amendment was ratified (like every other period in American history) it was fairly clear that fetuses were not considered persons.
By the way, the City of Boerne case that I cited above was by a “bipartisan” SCOTUS majority of Rehnquist, Stevens, Scalia, Kennedy, Thomas, and Ginsburg. The dissenters were O’Connor, Souter, and Breyer.
I think you either write your Senators and Congressman and wait for them to initiate the Amendments, or you grab your firearms and wait for an army to form behind you. Either way, don’t hold your breath.
To finish giving my 2-cents-worth — OK, actually more like 8-cents-worth after 4 posts on the subject — I ultimately agree with Frank Soto’s point in # 13 above about “unilateral disarmament.”
We conservatives may bemoan the overexpansive Commerce Clause jurisprudence that started with the 1937 “switch in time that saved nine” in West Coast Hotel Co. v. Parrish and reached absurdity with Wickard v. Filburn in 1942 — in which SCOTUS held that a farmer who grew wheat on his own land, for his own use, was engaging in “interstate commerce” subject to federal regulation by FDR’s New Deal commissars.
But since this is the law, we should use it to advance the conservative agenda. So let’s pass a national 20-week abortion ban, justified by the Commerce Clause, and hoist those Leftists with their own petard. And sure, I’d be willing to see it invalidated, but only by a wholesale change of Commerce Clause jurisprudence that would equally (or even disproportionately) affect Left-leaning laws based on this weak justification.
Larry: “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.”
Right, but I wasn’t saying we can’t change the Constitution. I was pointing out that when discussing whether something is permissible under the current constitution, other potential constitutions are not really relevant.
I don’t understand. The decision said that the government can not force you to engage in commerce through the commerce clause. Roberts devoted pages 16-27 to it. To quote “They gave Congress the power to regulate commerce, not to compel it”. How could that be clearer?
Well of course Insta thinks that, and it’s not super surprising that you do. Since you’re both pro-choice, obviously you’d prefer to have the only available Federal pro-life solution being impossible.
I agree that there are problems with the 14th Amendment approach, and I guess I agree that regulating abortion clinics that engaged in intrastate abortions only and that accept no federal funds is something that should only be done by state law.
There aren’t that many late term abortionists about, though, so most do a substantial amount of interstate abortions. Protecting states ability to protect the lives of their unborn citizens by preventing interstate competition from undermining the individual state regulatory system seems exactly the sort of thing the commerce clause is intended to protect.
I don’t think that that is that clear.
You’re right that the offense is greater if you kill a kid after birth, but it’s an offense both ways. There’s all sorts of reasons to reduce the penalties for killing. In scripture, relevantly to Common Law as understood by the 39th Congress, the penalty for accidentally killing a fetus is less than the penalty for accidentally killing an adult, but the difference is less than the difference between the accidental and deliberate killing of an adult. From what I can tell, under that paradigm, we can know that a fetus is on the spectrum between an adult and a dog, but we don’t know which side of the “person” line it is on.
James- I don’t think the proposed federal ban is unconstitutional under the current interpretation of the Commerce Clause. I think it unconstitutional under the correct interpretation of the Commerce Clause.
Right. Do you believe that a federal ban that prohibited interstate commerce in abortion provision after 20 weeks and prohibited the use of federal funds in the provision of abortions after 20 weeks more strongly than the Hyde Amendment currently does would be unconstitutional under the correct interpretation?
Yes, I understand but it seems like you are playing around with the ideas in your head and pretending that we don’t really want to solve the problem just have a debate. The goal for us pro-lifers is to solve the problem. We don’t care if it’s not permissible at present — that’s an academic issue not a roadblock to our goal. This is our country and we can fix problems here using the powers bequeathed to us.
We want to end the holocaust and we want solutions to that. I bet the framers would be on our side in this.
James: “In scripture, relevantly to Common Law as understood by the 39th Congress, the penalty for accidentally killing a fetus is less than the penalty for accidentally killing an adult, but the difference is less than the difference between the accidental and deliberate killing of an adult.”
Interesting, though I would argue that that is an indication of the importance to be placed upon the distinction between deliberate and accidental wrongdoing relative to the importance of the distinction between pre- and post-natal life more than it is an indication of the actual status of pre-natal life.
On a related note, are you aware of any homicide laws enacted during the period which varied punishment based on the victim’s age?
Larry: “Yes, I understand but it seems like you are playing around with the ideas in your head and pretending that we don’t really want to solve the problem just have a debate. The goal for us pro-lifers is to solve the problem.”
The thing is that Ricochet is essentially a debating society.
James: “Right. Do you believe that a federal ban that prohibited interstate commerce in abortion provision after 20 weeks and prohibited the use of federal funds in the provision of abortions after 20 weeks more strongly than the Hyde Amendment currently does would be unconstitutional under the correct interpretation?”
No, though my definition of interstate commerce in abortion would not include the interstate travel of the women seeking abortions.
If you look through the lists of weregild payments, you’ll find that kids are worth less, as are old people; old women are particularly cheap to murder (fertility was a lot of their value). That’s a while back before Johnson, but it’s the framework within which the abortion laws you were referring to were formed.
Also, the age of the victim is only one way in which abortions are different. Early medieval homicide law made slaying by stealth different to killing in an open manner. With abortion, you can be open about your killing, which would have made the offense a non-capital crime, one for which a fine alone was appropriate. There are many different ways in which cultures can draw lines within homicide. When we’re talking about something for which we have little evidence (why abortion was regulated as it was), it seems unwise to claim a high degree of certainty based on a hunch almost certainly formed from anachronistic reasoning.
If the women seeking abortions heard about the clinic through interstate advertising, would that be enough to make it interstate commerce? I don’t think you’d lose much by allowing intrastate commerce with citizens of other states; most late abortions happen through referrals and other interstate contracts of the sort that I imagine you’d be comfortable regulating.
I don’t think that most referrals would constitute interstate commerce as they usually do not involve compensation. Those that do would. Having some vicarious contact with the subject due to my wife’s time as an SVU prosecutor, my impression is that aside from referrals the most common way late term abortionists are located is via the Internet. I’m not aware of much other late-term abortion advertising.
Gosnell’s patients were sent by doctors who provided referrals as part of their treatment, which was provided as part of their general work. They aren’t paid for the referral specifically, but they are paid for services which include that act of interstate commerce.
Fair point.
Yes, it would be.
Congressional authority derives from its enumerated powers. It has no such powers in this area. I know you made the comment to Sal and don’t know where he stands on this bill as policy, but as I stated earlier I favor it as a matter of policy but oppose it as a Constitutional matter.
The Hyde Amendment is a different matter. Congress is acting under its spending powers and has the right to do so.
Could you expand on Congress’ lack of an enumerated power to regulate interstate commerce?