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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
Good question. I’ll respond as to what I believe the correct interpretation of the Commerce Clause is rather than what current Supreme Court jurisprudence is as well as reemphasize that this is an academic discussion since the plaintiffs in any litigation if this bill is enacted will never challenge it on Commerce Clause grounds.
Under the pre-New Deal cases Congress could regulate goods in interstate transit or transport incident to movement of such goods. It seems to me that Congress cannot directly regulate the act of abortion since it is not a good moving interstate. If someone travels to another state to obtain an abortion Congress cannot forbid such travel. What it could possibly do is regulate the interstate advertising of such services and the manner in which such services are sold across state lines. As I understand it the proposal now in front of Congress goes beyond that permissible scope.
Right. Did you read the discussion between Sal and me in which I made it clear that it was precisely what you say can be regulated that I was proposing regulating?
I think that discussion is on the right track.
The 14th Amendment was passed partly to reverse the Dred Scott decision which held that Scott could not be a citizen of the United States. Part of the problem was that the term “citizen” was not defined in the Constitution -so Congress defined it in Section 1. However, there is no place in the Constitution where the term “person” is defined. So, we need a definition. Defining the term is not part of Congress enumerated powers in Article 1 Section 8 of the Constitution. However, Section 5 of the 14th Amendment gives Congress a power pertaining to the 14th Amendment itself.
‘The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Since personhood is not defined, and some definition of person is needed to enforce the provisions of Section 1, Congressional legislation defining the term “person” is appropriate under Section 5.
Of course the Court may not agree -even with this simple and obviously irrefutable argument. Fortunately we can persuade them. Nothing in the Constitution limits the size of the Supreme Court to nine judges. Congressional legislation has changed the size of the Court several times in history. The size of the Court has varied between five and ten judges at different times. So lets elect a pro-life Congress and President, then add, -oh, about sixteen new judges to the Court. That should be enough of a majority to get a favorable decision.
AP, interesting analysis. I don’t think the Court in Roe or its progeny foreclosed the possibility that a fetus might be a person later in the pregnancy when the Constitution supposedly permits state regulation of abortion. So, perhaps it can be argued that the cases imply that personhood attaches long after conception, like following 20 weeks of pregnancy?
In which case, a Congressional act under Sec. 5 of the 14th Amendment would not be an expansion of existing rights, but merely Congress deciding to use a legislative enforcement power in this area which it had heretofore permitted to lie dormant. In an ideal world, I’d love to see Congress do this, as it puts the 14th Amendment to work for a conservative cause, whereas we’re so often on the side of trying to limit 14th Amendment rights, even though it was our party’s forefathers who, idealistically, rammed the amendment into law.
Practically speaking, however, I’d prefer the states deal with this issue because any federal proposals on the topic would be controversial, feed the Dem “War on Women” narrative, and most of all, never pass, given Obama and a slim Senate majority. Even if President Cruz presided over large Republican majorities, I’d prefer he turn his attention elsewhere, like fixing our bankrupt entitlement systems, enacting pro-growth tax and regulatory reform, and stomping the Iranians.
Michael- The Constitution, including the 14th Amendment, does not define due process or equal protection either. Do you think that Congress can legislatively overturn Supreme Court decisions regarding the definition of those terms as well? The Constitution doesn’t define many important terms. If Congress can establish definitions retroactively via mere statutes what is the point of having a constitution in the first place?
I remember William F. Buckley, Jr. lamenting that fact that Congress had never removed a law from court consideration. What would he be thinking about? Is there some such provision? WFB wanted it just once to lock in that precedence.
I would assume he was speaking of this portion of Art. III, Section 2:
In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
If I recall correctly, the Congress did limit appellate jurisdiction in one of the laws regarding unlawful combatants but the Supreme Court ignored them saying the law could not apply to cases brought before its passage.
To me, it’s always seemed that Art. III Sec. 2 means that Congress could pass a law, and within that law state that it is not subject to review by the courts.
I’ve been giving this a lot of thought over the past few days since I first saw this post, and I’ve come up with my thoughts here.
First, you are generally right: we should try to understand the Constitution and not read into it what we’d like it to say. On that, as a general principle, we agree.
But, as I think about the most basic rights of the human being, chief of which is the right to life, I can’t help but think that the Constitution was, if not in word, at least in spirit, designed to protect those most basic rights. I’m not learned enough to expound on what the Founders’ opinions were on the humanity of an unborn child, but I do believe that we have learned enough to know that at the very least, an unborn child at 20 weeks’ gestation is in all ways human.
Now, I know that you and many others here agree that we should protect human life in the womb, and ought to amend the constitution to make this current bill constitutional. And I agree with you there, as well.
I do not agree, however, that by passing this law we are no better than those liberals, guilty of bastardizing the Constitution, and contributing to the ruin of Constitutional government. I’m comfortable with stretching a few passages of the constitution here, because I believe that the law is in keeping with the spirit of the constitution. We may find it a stretch to fit the law in based on the letter of the constitution, but for sure, the spirit of the constitution and this bill are in sync.
Now, you might say “Hey, those libs make the same excuse.” Well, that might be what they say, but here’s what they really believe: the Constitution means nothing. They’ll use it when it helps, ignore it if they can, bend it if it makes sense. But they don’t give a rip about the spirit of the constitution. I know this because my liberal friends have said as much. One colleague told me that he and his buddies had taken to carrying around pocket copies of the document just so they could make fun of the Tea Baggers, and so they could sit around and point out just how useless the Constitution is. That is not us. And that attitude is not in play with us. If we bend the constitution it is because we believe in it. And we believe it stands for something. But we also recognize that when it was written, there were some situations that the Founder’s were not aware of. And though it might be ideal to amend the Constitution to address these situations, that is not always feasible.
When has that ever stopped them? More to the point, when has that ever stopped the Supreme Court from giving them these powers?
Heller and MacDonald come to mind (admittedly, not about congress).
Also striking down the Violence Against Women Act on Commerce Clause grounds.
Heller gave me hope that things were finally changing on the court. Then came the Obamacare ruling…
The Obamacare ruling was the strongest defense of the Commerce clause in 80 years. It was also a ground breaking expansion of the Tenth Amendment. As this post reminds us, we shouldn’t get confused between a defense of the Constitution and the policy outcomes we want.
Just to clarify, and forgive me if my language is not precise, Robert’s ruling is binding precedent on future rulings? How does that work? Since he wrote with the backing of the liberal wing of the court, I can’t imagine they signed on to the “defense of the Commerce clause.” I remember hearing (the opinion) that that section was non-binding opinion.
Does the court get differing groups of five judges agreeing with different parts of the ruling? So the liberals signed on for keeping Obamacare, but the conservatives got the defense of the Commerce clause? Or was part of the deal for Robert’s vote that the liberals would sign on to his entire opinion?
You’re right that there are some pundits who have tried to dismiss the commerce clause portions as obiter. I don’t believe that this has been the approach taken by any non-partisan scholars. The syllabus features it prominently and it’s a ruling critical to the opinion.
You’re also right that the liberals could not be persuaded to sign on to it. Ginsburg wrote a concurring opinion that dissented from that part of the ruling, in which she was joined by the other three liberals.
Happily, we still have five votes for it, since the four dissenters were all clear in their agreement with the majority opinion on this point.
The same is true for the Tenth Amendment defense. The ability of states to opt out was created by this case, and the legal reason for that is that the four dissenters plus Roberts commanded a controlling majority over the four concurring liberals.
Thanks very much, guys. Most interesting.
Salvatore, my views about the Constitution are way outside the mainstream of anybody else’s. I’d like to reverse Marbury vs Madison. To answer your specific question, I think that Congress should be able to overturn any Supreme Court decision legislatively. Even if my view became prevalent it is unlikely that Congress would override most Supreme Court decisions on due process or equal protection. There is no political demand for it. Some changes would be made. The exclusionary rule would go sooner or later. Good riddance. But most decisions that are now in force would not be overturned, because there is no urgent reason to overturn them.
But I have lived most of my adult life in a state of suppressed fury about the abortion decisions, as have many other people. Defining personhood to include the unborn is one possible way to overturn them. If that’s not possible, then just use the commerce clause. It works for everything else. Constitutional law is a power game for elitists which has become quite dangerous. I’ll settle for a plain old vanilla democracy instead.
Sal, it seems to me that this is exactly what the Congress can do. The notion that the Supreme Court gets the final word on anything is quite undemocratic. Michael Collins, I’m with you — democracy is what is the most important. It’s our country, our Constitution and our government. Our will — if clearly expressed in a democratic forum — must have the final word.
(Abortion is a very good example of a system that is not functioning correctly. And redefining marriage is another.)
From Lincoln’s First Inaugural:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.
Wow, thanks for that, Klaatu, — and Lincoln was an eminent lawyer. Let’s forget about the Civil War for a minute and recognize that this was his considered opinion after having studied and practiced law for many many years.
And while we’re at it lets remember the saying of Winston Churchill: “Democracy is the worst form of government, -except for any of the others that have been tried from time to time”. Including government by the judiciary.
We part company here, at least as phrased above. Abridgements of basic liberties — freedom of conscience, of speech, to defense, etc. — are not ameliorated by their being democratic. They’re just as bad imposed by a major as by a single despot. SCOTUS rulings in Heller and MacDonald overturned democracy in the states and municipalities that gratuitously abridged citizens’ rights and that’s a good thing.
Democracy as I used it also allows us to, by amendment (at least), 1) clarify misunderstandings in the present Constitution and/or 2) change basic liberties wholesale (this is in our democratic power) and/or 3) invent new basic liberties that get protected by the Constitution. The Constitution is not a living document except in the way allowed by the articles within it. Interpretation as a way of directing and forming law has to have a day of reckoning when the interpretive faculties show signs of illness, senility or mendacity. It’s our country and our Constitution.
“Abridgments of basic liberties” are just as bad when committed by a democratic government as when they are committed by a despot. True, and so is the reverse. Abridgments of liberty are just as bad when committed by the Supreme Court as when they are committed by a democratic government. The Court has abridged liberty many times. Congress banned slavery in federal territories, the Supreme Court overturned the ban. Congress banned racial discrimination in the Civil Rights Act of 1875, the Court overturned that law in 1883. Congress banned child labor twice (a very hot issue at one time) the Court overturned both acts. The Court is more likely to err than a democratic government would be, and it is far more difficult to correct judicial errors (unless there is a Civil War, or a Great Depression, or something equally bad). Why don’t we try democracy sometime? We might even find that we like it.
In place of “Amend, Don’t Bend”, for the Supreme Court I’d say “Break and don’t remake!”
Break what, Michael? I don’t understand. Should we break the court or should they only be allowed to disqualify (break) laws and not remake them?
MC: “The Court is more likely to err than a democratic government would be…”
I’m not sure that’s correct. Most of the damage done to the Constitution has been by the democratically elected branches, with the Court merely acquiescing. Plessy, Wickard, and the ACA are often cited as examples of judicial destruction of the Constitution, but each was merely a case of the Court letting the democratic branches do what they wanted.
Break the Supreme Court. I would say a court packing plan such as the one Roosevelt proposed would be the first step. This would render the Court useless as an activist institution, or at least greatly limit its’ power. Once the Court was neutralized, I would amend Article III of the Constitution which currently reads “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Instead it would say “The judicial power of the United States shall be vested in such courts as the Congress may from time to time ordain and establish”. Congress would undoubtedly establish a hierarchy with one court on top, but that court would be the creature of Congress. They could disestablish their “top court” if they chose, or create another court to sit above it so as to have the power to reverse its decisions if necessary. Basically I want the judicial branch to be subordinate to the legislature. The judiciary needs to be independent when it comes to deciding the guilt or innocence of a defendant under laws passed by Congress, but should have no say about the content of the laws themselves. Deciding whether to send someone to jail or not is more than enough responsibility for anyone to have.