James Leroy Wilson's one-man magazine.

Wednesday, August 27, 2008

Resolving Abortion the Constitutional Way

Paul Gottfried thinks that abortion is as significant an issue as riverboat gambling to Obama and McCain. They talk about it when they have to to please some core constituencies, but deep down they couldn't care less.

Abortion does seem to be a trivial issue, especially to Republicans. They had four years (02-06) with majorities in both houses and a Republican in the White House to do something about it, but they did not.

Specifically, they could have passed Ron Paul's Sanctity of Life Act which would have stripped the federal courts of jurisdiction to hear cases involving state laws against abortion. (I'd have linked directly to the bill, but the Library of Congress's legislative site is down today.) But in the Republican 109th Congress, the bill had a total of five co-sponsors. Reintroduced in the Democratic 110th Congress, it has just four co-sponsors.

Some may wonder, isn't this unconstitutional? Doesn't it violate the "separation of powers" doctrine? Actually, it affirms the principle. Article III, section 2 of the Constitution states:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
It says nothing about cases "in law and equity, arising under the State law." And because the Constitution says nothing about abortion, it is a matter left to the people of the States. Furthermore, Article I, section 8 authorized Congress to establish federal courts inferior to the Supreme Court, and if Congress as the power to establish or not establish a federal court, it also has the power to determine or not determine its jurisdiction. Indeed, this bill vindicates the Separation of Powers doctrine by limiting the federal court's ability to "legislate from bench."

Question for those supporting John McCain only because of the abortion question: Why didn't McCain sponsor this in the Senate? And why haven't 200 Republicans sponsored this bill, instead of a mere five?

If pro-life organizations want to actually accomplish something rather than just live off donations, they should focus on passing this bill:
  • Insist on a straight answer from each Presidential candidate on the bill.
  • Ask each House and Senate candidate if they will sponsor it, and publicize their answers.
This bill would have the added benefit of divorcing the abortion question from judicial politics. Nominees would be more closely evaluated on their views of, for instance, civil liberties and property rights.

However one may feel about the legality of abortion, Roe v. Wade was wrongly decided as a matter of Constitutional law. Instead of waiting for the Supreme Court to reverse itself, Congress should reverse the decision. The fact that Republicans haven't even tried suggests that Gottfried is right: they don't really care.


  1. Why pick on Roe v Wade? There are many more egregious usurpations of state authority.

  2. Um, because it's a big issue to a lot of people?