The most interesting moments during yesterday's presidential forum in South Carolina came when the Republican candidates grappled with a thorny question about the United States constitution and human rights. One of the questioners, Professor Robert George of Princeton, wanted to know whether the candidates would, as president, refuse to abide by the Supreme Court's rulings that have declared a constitutional right to abortion and support federal legislation to protect the right to life of unborn children.
George noted that Congress is authorized to pass legislation enforcing the 14th amendment, which declares that states may not "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." And he quoted Abraham Lincoln's remarks from his first inaugural address rebuking the Supreme Court's Dred Scott ruling: "If the policy of the government upon vitals affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
The candidates offered thoughtful and unique responses to a complicated question that they couldn't have possibly expected. (The candidates were questioned one at a time and sequestered prior to their appearance on stage, so none had the opportunity to borrow the thoughts of other candidates for their responses.)
Three candidates--Michele Bachmann, Herman Cain, and Newt Gingrich--said they were in favor of federal legislation overriding the court's ruling in Roe v. Wade. Ron Paul said Congress should pass a law letting states decide how to regulate abortion. Mitt Romney made a prudential argument against forcing a showdown with the Supreme Court and said he would like to appoint Supreme Court justices who would return the issue to the states.
"If the Supreme Court, by a plurality of the justices, may impose their own personal morality on the rest of the nation, then we are quite literally being ruled by those individuals, as opposed to giving our consent to the people's representatives," said Michele Bachmann. "So, most assuredly, that power does lie with the representatives and the Senate, the people's representatives in the United States Congress."
Gingrich developed this line of reasoning at greater length. "There are a number of issues where the courts have now dramatically usurped their power," he said. "The idea that the founding fathers also meant to say oh, by the way, by a five to four vote, appointed lawyers can be the equivalent of a constitution convention is an absurdity. All of this starts in 1958 with a Warren Court assertion of supremacy, which is profoundly wrong. The Supreme Court is supreme in the judicial branch, and the judicial branch is one of the three branches. It's the third branch mentioned in the constitution, and in the Federalist Papers, Alexander Hamilton says explicitly it will be the weakest of the three branches."
"I believe the legislative and executive branches have an obligation to defend the constitution against judges who are tyrannical and who seek to impose un-American values on the people of the United States," said Gingrich.
The former speaker of the House said Congress should curtail the jurisdiction of the courts on certain issues. George asked him whether his statements should concern voters that he doesn't respect the independence of the judiciary.
"I respect the independence of the judiciary in judging individual cases unless the person doing the judging proves to be so extraordinarily out of the context of the American life and American law that they shouldn't be there," Gingrich replied. "You can't say we have a corrective balance between the three branches, except by the way that these two should never use it. I mean, either there is genuine tension between the three branches and the legislative and executive have a right on occasion to correct the judiciary, or the judiciary is a dominant branch and can dictate to the rest of us. As Speaker Pelosi once said, the Supreme Court speaks it's the voice of God. Well, I don't agree with her."
Ron Paul defended the states' rights view. "I would remove jurisdiction from federal courts so the states could immediately do what they want," said Paul. "But when you refer and use the 14th Amendment, it implies that the 14th amendment repealed the Ninth and 10th amendment."
Professor George and Congressman Paul began to debate the issue:
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.