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Federalism and the Abortion Ban(19 posts)

Federalism and the Abortion Ban53T
Nov 7, 2003 7:05 AM
I'm a conservative. I'm also a strict constructionist. Why am I hearing no discussion about the structural inappropriateness of the latest federal abortion restriction legislation? There are three federal judges to object to the law based on inadequate protection of the mother's health. I find this argument very practical, but somewhat lame.

I understand that these judges are very liberal, and support abortion rights in general. I also understand that they are basing their legal argument on very solid footing, since the Supremes shot down a state law three years ago on the exact same grounds. It's a safe argument, but lacks intellectual interest.

I want to see someone stand up and cite U.S v. Lopez, the 1995 case that finally found the outer limits of the Commerce Clause as an excuse for expanding federal authority into the business of the 50 sovereign states. The same argument could be made here that the federal government has no compelling interest to protect public health, safety and morality, other than that granted by the Constitution.

I could see banning partial-birth abortions in federal parks and post-offices, and VA hospitals, but across the country? Can anyone think of a relevant precedent to this expansion of federal authority?

Humble request: No abortion debate! This is a federalism question. I know that some people find federalism and state's right questions to be boring and irrelevant, but I think an understanding of the system helps one to understand American government in general.
I have more of a problem with ...Live Steam
Nov 7, 2003 7:22 AM
these jurists trying to legislate from the bench. What ever happened to separation of powers? The judiciary are there to enforce the laws that are put in place by the legislature. They aren't there to make changes to the law based on their personal opinions. I also think it is difficult to separate the abortion issue from this. It is clearly about the protection of life under the Constitution.

I think that States rule is becoming an academic issue in this day of instant information. Quality of life issues are more nationalized and less geography specific. States should and do have control over their own economic issues, but I don't see them having control over anything other than truly localized issues.
My point53T
Nov 7, 2003 7:38 AM
Steam, you're a good guy but your post goes right to the heart of my point.

You refer to the protection of life under the Constitution, but there is no reference to the protection of life in the Constitution. There is no reference to the protection of public safety of any sort in the Constitution.

You post then goes on to charaterize the states as having little control over anything but truly local issues. In fact, 99% of all public health, safety and morality laws are state laws. The degree to which the feds have encroached in this area is very small, relativly speaking. To get the FBI to chase you for killing soemone, it has to be in a federal office building (Oklahoma City for example) or some similar set of circumstances.

The ready availability of information does not change the fundamental nature of the Republic. We have a "federal" system, and, like Jefferson et. al., I don't want to see it turn into a "national" system.

Any great cycling legal minds want to take a stand here?
Using your argumentLive Steam
Nov 7, 2003 7:54 AM
A state can legislate anything that is not "specifically" spelled out in the Constitution. Actually Amendment X states just that. So following right along, killing someone could theoretically be made legal in any one particular state.

I actually don't see abortion as being a "health" issue, well that is not in the same light as herpes or some other public health issue. So is the Constitution that wide open to interpretation? Can a state legislate that killing another person is legal?
consider 14th amendDougSloan
Nov 7, 2003 8:02 AM
Amendment XIV

Section 1. 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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I think the equal protection clause could be used to require enforcement of murder laws. I can't say that has been thought out that much, though, for obvious reasons.

Nov 7, 2003 8:04 AM
Frst of all, states can't make things legal, they can only make them illegal.

As an example, Nevada chosses not to make prostitution illegal, Vermont chooses not to make carrying a gun without a permit illegal. These are important public safety issues, no?

I agrue that that the constitution is not that open to interpretation, that is the root of strict construtionist thought.
depends on status quoDougSloan
Nov 7, 2003 8:18 AM
If something is presently illegal in a state, then the state would need to pass a law making it legal expressly or by repealing another law.

Even a strict constructionist must interpret the Constitution. Sometimes it is vague or ambiguous. Now, there are rules of judicial interpretation, and rule number one is that if the plain words of the law make sense and are not capable of more than one interpretation, then you stop there. However, that's rarely done. All sorts of additional contortions are made, including seeking original intent (the biggest opening), juxtaposing against other laws, "expression of one is to the exclusion of others," (normally in Latin), etc.

turn back the clock?DougSloan
Nov 7, 2003 7:56 AM
You'd have to turn back the clock to the 1800's to make any serious attempt and undoing federalism encroachments. This law is a blip on the screen compared to the thousands of laws and court decisions that violate federalism principles.

The "right to privacy" that allowed the Roe decision isn't (expressly) in the Constitution, either. So, doesn't it follow that if the federal goverment (Court) can prohibit states banning abortion, then doesn't the federal government also have the power to prohibit or regulate abortion? Or, do we want only the Supreme Court to have any authority on the subject at the federal level? If we had a very liberal Congress and President, but a very conservative Court, would opinions change?

I'm not arguing that this law is all proper, particularly in the federalism context, but it is consistent with other federal powers exercised. Again, can the federal government dictate something like clean air but not life itself?

role of judiciaryTri_Rich
Nov 7, 2003 12:14 PM
Steam, you wrote

"The judiciary are there to enforce the laws that are put in place by the legislature"

I don't think this is entirely true as the role of the Supreme Court (judicial branch) is in part to provide a "check" on the power of the Congress (legislative branch) i.e.the congress can't pass unconstitutional laws.
federalism is almost meaninglessDougSloan
Nov 7, 2003 7:28 AM
If consistency matters, I can't see why the federal government could dictate a state's speed limits, but not ban killing human beings. The feds intervene in almost every facet of our existence now, and I think the extent to which they will do so is more circumscribed by money and public tolerance of it than the Constitution.

The federal government can legitimately, at least according to precedent of the last 50 years, intervent to protect fundamental rights, such as voting, interstate travel, privacy, and it would seem, life itself. I can't see why the Supreme Court could be the only authority at the federal level to be used to protect these rights, at least in federalism argument. Many, if not most, liberal goals have been acheived in the Supreme Court, not necessarily in Congress. I think Congress has equivalent authority to the Supreme Court to make changes, again, in context of federalism. Live by the sword...

Nonetheless, I would prefer all decisions to be made at the most local level, including this one. However, those days are largely gone now, and the new paradigm of decision making is largely as I described above -- that is, the feds take what power they want. I don't think we can go back.


Nonetheless, m
Nov 7, 2003 7:46 AM
I don't expect Congress to show restraint in the expansion of federal power. However the Supreme Court (this particular court) has shown some intolerance to unchecked expansion. Look at Lopez. The Supremes struck down gun-free schools zones on the basis that: it is none of the federal governments business; public safety is a state responsibility; and the commerce clause was not big enough to justify the law. They never referred to anything in the Bill of Rights, or any other civil rights precedent. Remember, they were striking down a federal law, not a State law.

Here, due to the issue, the constituencies are opposite, but the legal details are the same, at least as far as I can see. Do you see a big difference between U.S. v. Lopez and the latest abortion legislation?
then, to be consistentDougSloan
Nov 7, 2003 7:58 AM
Should the Court vacate Roe v. Wade and leave all abortion regulation to the states?

only if the Court wants to ignore the Supremacy Clause . . .ms
Nov 7, 2003 8:12 AM
The Court's decision in Roe was based on the existence (or invention, depending upon your point of view) of a federal constitutional right. So long as a federal constitutional right is a stake, the Supremacy Clause dictates that all state laws that infringe the federal right give way. Comparing Lopez to Roe is like comparing apples to oranges. Lopez deals with the procedural power of Congress to enact federal legislation; Roe deals with the existence of a substantive constitutional right.

Now whether Roe was correct on the existence of a constitutional right is concerned, I don't want to get into that debate -- I think that it has been one of the most corrosive issues in United States politics since 1973. Someone once said, referring to GHW Bush (#41), that the only thing that one can say with certainty about GWHB's real views on abortion is that he hates the issue. That's one place where #41 and I agree.
Think structure, not content53T
Nov 7, 2003 8:13 AM
Roe v. Wade was the Court striking down a state law because they found it to deny rights granted by teh Constitution. This is the classic civil rights evolution that we have seen since the Civil War.

Lopez is the court stiking down a federal law on lack of authority, and it was only 8 years ago. Has anything important changed since then?
agree about apples and orangesDougSloan
Nov 7, 2003 8:23 AM
I'm not really following your argument; I thought it concerned the partial birth abortion law on federalism grounds. I just don't understand how Lopez applies. Again, how could the federal government decide and enforce a right to privacy but not a right to life?

Sorry for the confusion53T
Nov 7, 2003 6:02 PM
Maybe you are hung up on the content of the case, federalism arguments usually ignore content and look at the structure of the laws, and the authorities involved.

Perhaps you have not read Lopez: In 1995 the Supreme Court struck down a federal law banning guns near schools. The majority opinion in Lopez rested solely on lack of federal authority to legislate public safety without a clear constitutional basis. The authors of the law (as is the case with almost all federal safety laws) cited the commerce clause as the constitutional authority, i.e. "gun free school are important for interstate commerce". The court, in a largely unprecedented decision, decided the commerce clause did not reach that far. I personally could not find a single case where the commerce clause was not large enough to justify federal meddling in public safety, until 1995.

Fast forward to last week's federal ban on abortion. The Gun free Schools Act and the federal partial birth abortion act are strikingly similar. Both are federal statutes, passed with large majorities. Both are public safety laws. Both rely solely on the commerce clause to create a role for the federal government, i.e. to give the feds permission to ban something. Both will be heard by the exact same Supreme Court (someone check this, when was Ruth B-G appointed?).

Furthermore, I want to stress that this is NOT a civil rights case. Roe v. Wade WAS a civil rights case. The Supremes used several constitutional rights to come up with a right to be left alone and overturned a state law that prohibited early term abortions. Almost all Supreme Court civil rights cases (and there are many important ones) involve striking down a state's attempt to abridge or infringe a US citizen's rights to do something.

When the court is asked to strike down a federal law on federalism basis, it is simply going back to the enumerated powers of the federal government and checking to see if there is any legitimate role for the federal government in this area.

Surely you see the parallels between the upcoming abortion law battle and U.S. v. Lopez? My question is: what is different between the two cases? Why would the abortion law not be overturned on the exact same basis?

If you are tempted to say, "one is about gun control and one is about abortion", you really are missing my point. Or, conversely, I no longer have a point and federalism is truly dead.
Conservatives are not necessarily friends of federalism . . .ms
Nov 7, 2003 8:01 AM
I happen to be a moderate-to-liberal Democrat who spends most of his time representing conservative businesses. One thing that I have learned over the years is that most businesses that operate across state lines (i.e., almost any business of any size) would prefer federal regulation and preemption of state laws than state regulation. The reason is simple: state regulation does not allow for uniformity, which is necesary if national businesses are to be efficient. Insofar as things like abortion, drug crimes and other things dear to conservatives' hearts, federalism would mean that some parts of the United States would have very liberal laws -- something that they do not want.

Procedural concepts like federalism and judicial restraint are good when you like what states are doing and you are a member of the majority. However, I think that most people, whether they are conservative or liberal, don't give a damn when federalism or judicial restraint get in the way of what they want on a substantive level.

The concepts of federalism that were envisioned by the Founders have been changed significantly since the Constitutional Convention met in 1787. The Civil War and the post-Civil War amendments to the Constitution (especially the 14th amendment) fundamentally changed the structure of the United States Government. The change was confirmed and accelerated by the Great Depression and the expansion of the Federal Government wrought by the Roosevelt administration. The nature of the economy, the mobility of people and goods,improved communications and the significance of federal financial support for state and local governments make it unlikely that the trend from Federalism to a central national authority will be reversed.
in theory, yes, but can't fight with one hand tiedDougSloan
Nov 7, 2003 8:37 AM
In theory, I think Conservatives prefer federalism. However, this country has become so nationalized in many respects that to argue for federalism is almost silly any more. There is so much regulation from the feds from all three branches that to ignore that and argue specific laws on federalism grounds is a total lost cause, unless, of course, several thousand existing laws and court decisions are repealed and we start over.

Your point is clear53T
Nov 7, 2003 6:03 PM
I'm just not giving up the store that easily!