22 October 2011

Confusion About the Constitution

People are aware by now of Herman Cain's response in the recent CNN interview on the question of abortion.
[CNN asked] Cain if he would want his daughter or granddaughter, if raped, to keep the baby — which Cain said “was mixing two things.”

“It’s not the government’s role, or anybody else’s role to make that decision,” Cain responded. “[W]hat I’m saying is, it ultimately gets down to a choice that that family or that mother has to make. Not me as president. Not some politician, not a bureaucrat. It gets down to that family, and whatever they decide, they decide. I shouldn’t have to tell them what decision to make for such a sensitive issue.”
Cain later clarified his statement:
I understood the thrust of the question to ask whether that I, as president, would simply “order” people to not seek an abortion. My answer was focused on the role of the President. The President has no constitutional authority to order any such action by anyone. That was the point I was trying to convey.
Cain is correct in that the Constitution gives the President no authority to order the end of all abortions by executive fiat. Unfortunately, that isn't what Cain originally said. His words were, "It’s not the government’s role, or anybody else’s role to make that decision...Not me as president. Not some politician, not a bureaucrat." He clearly includes here, not just the president, but anyone in government. Whether he means to limit it only to the federal government or he intends to include state government as well is unclear.

The issue of abortion has *always* been a state issue--up until that travesty of justice known as Roe v. Wade. And the travesty, legally speaking, was not the legalization of the murder of the unborn, but the abuse of power exercised by the Supreme Court, by reading a so-called right into the Constitution that was never there. At the time Roe was passed, about half the states had laws outlawing abortion, while the other half had legalized it. In an act of breathtaking arrogance, nine men decided a moral issue over which they (via the Constitution) had absolutely no authority. I would argue the same if the outcome had been the opposite, and the justices had decided to outlaw abortion everywhere (although they would have had a stronger constitutional claim to issue such a decision).

With federal government as bloated as it is (which began with the New Deal, or, even farther back, the end of the Civil War), many people are under the mistaken impression that government can pass laws on anything it wants. Not so.

Every power the federal government has--whether it be the legislative, executive, or judicial branch--derives from one source alone: the Constitution. There is nothing any of the branches can do without the authority given them by the Constitution. For instance, the Constitution gives Congress to power to tax, therefore we have federal tax laws. The Constitution does not give Congress the power to regulate marriage, which has always been within the domain of the states; this is why it would be an abuse of congressional authority (ultra vires) if it were to pass a law regulating marriage among the 50 states. It simply does not have that authority in the Constitution. In the same way, the Constitution grants the federal government no power to regulate abortion. The Supreme Court had no constitutional authority to legalize abortion (which is why the ruling in Roe v. Wade could only come about through an exercise of legal gymnastics); the federal Legislature has no constitutional authority to regulate abortion in the states; and the federal Executive has no constitutional authority to regulate abortion in the states.

The only way that abortion could become a federal issue is if the states went through the process of amending the Constitution to ban abortions in all the states. This is a move any pro-lifer could heartily support, because it would be following a legitimate process delineated in the Constitution.

Short of a constitutional amendment, abortion must remain a state issue, where each state is free to pass laws regulating abortion as its constituents see fit. This is where faithful Catholics need to be present in large numbers at the ballot box, making sure their representatives pass laws protecting life, else they'll be voted out in favor of someone more friendly to the unborn.