PROF. GEORGE: It's certainly true that any constitutional provision can be abused and many of them have been abused, but the language of the 14th Amendment is very clear. It says that no state shall deprive any person of life, liberty, or property without due process of law or deny to any person the equal protection of the laws.
PAUL: If that were the case, no states would be involved in dealing with murder, injuries, second degree murder, manslaughter, robbery, armed robbery. Everything is still states. So you just can't pick up one. You should have no state laws against murders. Under your circumstances, it should be a federal issue.
PROF. GEORGE: Well, only if the murder laws are being denied -- the protection of murder laws are being denied to a class of people. So, for example, if the state withdrew its protections against killing if the person killing is of a certain race or ethnic group, then certainly under the 14th Amendment, the national government would be empowered to act. So if it withdraws its protection from a class of human beings, let's say the unborn, or if it were the newly born, or handicapped newborns, wouldn't that call for, not only permit but call for, action on the national level under section 1 of the 14th Amendment?
PAUL: Well, if you wanted to stretch the interpretation and enhance the power of the central government rather than enhancing the power of the local government, because they deal with all acts of violence. I think they're quite capable. Some of these things are more difficult. Some states have capital punishment, some places don't.
And it's still -- it's still -- I can understand your argument, but I think it really rejects the notion that the states were part of this republic we created. So if you get gradualism more and more, soon it's the interstate commerce clause and soon it's the general welfare clause.
I think when we can and we certainly can, we've done it for all our history to deal with violence or murder, this has always been a state issue. And I don't see why we would have to turn that into a federal issue.
As a matter of fact, the founders never even thought we should have a federal police force, but we do....
And here's Romney's response to the question:
Let me tell you what my orientation would be, which is I would like to appoint to the Supreme Court justices who believe in following the constitution as opposed to legislating from the bench.
I would like to see that Supreme Court return to the states the responsibility to determining laws related to abortion, as opposed to having the federal Supreme Court from the bench telling America and all the states how they have to do it. I think that's the appropriate course.
Now, is there a constitutional path to have the Congress say we're going to push aside the decision of the Supreme Court and we instead are going to step forward and return to the states this power or put in place our own views on abortion?
That would create obviously a constitutional crisis. Could that happen in this country? Could there be circumstances where that might occur? I think it's reasonable that something of that nature might happen someday. That's not something I would precipitate.
What I would look to do would be appoint people to the Supreme Court that will follow strictly the constitution as opposed to legislating from the bench. I believe that we must be a nation of laws.
Romney was the only candidate who declined to come out in favor of defying the court's ruling on this issue, but even he said that it's "reasonable" to think that someday Congress may have to refuse to submit to the court's unconstitutional ruling.
The idea put forward by Professor George that Congress could pass a law protecting human life "in all stages and conditions" may not be realistic. Justice Scalia has written that the constitution is silent on abortion, and therefore it is a matter to be regulated by the states. Moreover, it's hard to imagine a world any time in the near future where a majority of Congress and the president would defy the court.
Public opinion is pretty much split down the middle as to whether or not abortion should generally be legal. And if Congress is going to defy the Supreme Court on this ruling, or any ruling, it would have to have the public strongly on its side. Otherwise, any legislative victory would surely be a pyrrhic one.
But that doesn't make the idea crazy. George's question forced Republican candidates to go beyond talking points and discuss an issue at the heart of the constitution and the Declaration of Independence. What is truly insane, however, is the fact that the whims of one man--Justice Anthony Kennedy--should dictate the law on such a fundamental human rights question for Americans in all 50 states.