November 06, 2003
Ignoring The 10th Amendment
The president signed into law a ban on partial birth abortion procedures. These infanticidal procedures are monstrous and should be illegal but this particular federal law is unconstitutional.
The Constitution does not delegate to Congress the authority to regulate surgical procedures. Accordingly, the 10th Amendment actually prohibits Congress from making such a law: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." That means only the legislatures or the people of the 50 States have the authority to ban partial birth abortions.
The 10th Amendment is so easy to understand that its meaning is beyond debate. So national officeholders -- both Republicans and Democrats -- get around it by ignoring it.
Just because something may be a good idea, it doesn't mean that Congress automatically gains authority to write it into law. It wasn't all that long ago that some Bolshie Democrat heard about midnight basketball leagues in various cities and wanted Congress to fund them. Republicans were quick to point out, and rightly so, that Congress does not have the authority to fund such activities. A federal law banning partial birth abortion is every bit as unconstitutional as a federal law funding midnight basketball leagues -- and for the same reason.
Most Republicans would agree with me that there is no constitutional right to an abortion. And most Republicans would disagree with me that Congress doesn't have the constitutional authority to ban partial birth abortions. The Republicans' stand on the latter issue is a direct contradiction of their stand on the former.
The next time congressional Democrats or a Democrat president move to enact one of their pet issues by circumventing the Constitution (and they will), Republicans will have no credibility to oppose it on constitutional grounds.
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