It seems most of the world is now aware of the Supreme Court ruling on the Mississippi ban on abortion after 15 weeks of pregnancy. In other words, you’ve probably seen headlines like, “Roe v Wade Overturned”, “Abortion Rights Ended”, “Democracy’s Downfall?”, “A Win for the Right”, “Abortion Ended!” or a slew of other rousing propaganda titles meant to stir up reason-killing emotions. Justice Alito’s opinion on the majority ruling regarding the current case about a Mississippi abortion law has little to nothing to do with any of these click-bait titles.
As y’all are already aware, I stay away from commentating or offering my personal thoughts on topics like abortion, vaccines, gay marriage, or really any issue because, ultimately, my personal preferences and beliefs only matter so much. My beliefs pale in comparison to the importance of following a higher law: notably, The Constitution. So, I urge you, whoever you are reading this, to pause your tidal wave of emotions regarding the specific topic of abortion while reading this blog post. This is not a post about “abortion” but rather a post about the Constitution, arbitrary power and the job descriptions of both the federal and state governments.
When individuals from either side of the political spectrum start saying things like, “Abortion is now, blessedly, illegal!” or “Abortion rights have been overturned, taken away from women”, I can’t help but inwardly groan. Such statements reveal a deep and likely willing lack of knowledge about law, the Constitution and basics about how our government works. Instead, it’s more satisfying for Americans to get emotionally riled about something than to step back and actually analyze the situation.
So, here’s a brief overview of the “situation” from a Constitutional perspective. This is perfect timing because of the substantive due process information I was just introducing everyone to last week.
The U.S. federal government is not built to give or even enumerate to the American people any “rights”. It’s built to protect liberty by staying within a clearly defined list of enumerated powers that gives this federal government enough strength to bring about some order and stability to the union of states. The day to day governing was left, intentionally, to the states and their local governments with the hope that this immense distribution of power would prevent tyrannical abuse at a mass or national level.
This is why Article 1, Section 8 of the U.S. Constitution gives the federal government such limited, large scale powers. Issues like murder, building permits, marriage, education, poverty, licenses, and voting (to name a few) were left to the state governments, local governments and private communities to handle (Aside from the theoretical reasonings, there’s no one size fits all law for these types of issues either).
The founders added the Bill of Rights a few years after the initial Constitution’s ratification as an extra precaution in case (and in the likely event that) the federal government got too power greedy and overstepped the boundaries of its enumerated powers. The framers wanted to make sure that when the government inevitably did overstep, it wouldn’t be able to harm the citizen’s most prized political rights.
The founders were painfully aware of government’s hunger for power so they knew the federal government would try to violate their Constitutional limitations and siphon arbitrary power at every chance. It was this knowledge that caused them to insert as many safe guards as possible. The Bill of Rights being on of them–not a “list of our enumerated rights” as the Ninth Amendment attempted to spell out, but rather a list of very specific topics about which the federal government better not make laws.
Again, find an amendment that says, “All Americans have the right to… (free speech, guns etc).” You won’t find one. The amendments always say, “The right to vote (insert any other Bill of Right here) shall not be infringed” or something to that effect. Again, limiting federal power and protecting liberty, but NOT enumerating rights. We all have rights because we all have liberty before government ever entered the picture.
So, with this as the contextual backdrop, “abortion” rights or any other “rights” for that matter, are irrelevant. Our liberty in this and any other realm is protected by the text of the actual Constitution because the enumerated powers do NOT empower the federal government to make any laws of any kind regarding abortion or anything outside those enumerated powers. This means it would be unconstitutional for Congress to make a law outlawing abortion. It would also be unconstitutional for Congress to make a law legalizing abortion. Abortion is simply not within their realm of power based on the Constitution’s clearly laid out job description. If Congress were to write laws doing either of these things, they’d be taking hold of arbitrary power, power that comes from nowhere (since it’s not from the Constitution). This would be limitless power. Our government has already made laws outside its Constitutional confines an innumerable number of times, so there’s really no reason to say it won’t or even can’t do so with abortion but as of today, Congress has left the issue of abortion untouched.
The fact that the federal government has not written a single law about abortion means then that the Court—tasked with applying law, and on rare occasions interpreting the Constitution to confine federal power— issued a ruling about a topic that the federal government has yet to even touch. The Roe v Wade ruling (again, not a law) only had to do with states and state power.
Remember the Fourteenth Amendment and substantive due process? This is the precedent Roe v Wade used to justify expanding federal power, nullifying state laws and establishing that the federal government had the Constitutional prerogative to protect women’s ability to get an abortion from state governments that would choose to outlaw it.
Again, this ruling has little to do with the topic at hand but rather the power of the federal government according to the Constitution. If the federal government can arbitrarily say that there are “rights” in the Constitution, that, in fact, aren’t in the Constitution, and further say that these rights justify an increase in federal power over state power… what can’t the federal government do to dominate over states? The federal government could decide, arbitrarily, that everyone possessed the unenumerated Constitutional “right” to a house, to food, to healthcare, to be unvaccinated or vaccinated, to marriage, to education, to not be offended, to eat whatever one wants, to be healthy, to doctor assisted suicide, and to any other litany of “rights” government may deem Constitutional. It would be as simple as the Court declaring it so, and suddenly the federal government would believe itself to have the power to invalidate any state or local law (not to mention private individual or company) from hindering said right.
It’s all a game of power. A tug of war between the states and the federal government, with the federal government slowly gaining more rope by the day. It’s not about the issue. Those in the Court or even in the federal government don’t care about our “rights”, they care, ultimately, about power. This is government, remember?
So, the ruling from Roe v. Wade said that it was unconstitutional for state governments to prevent women from having abortions. The argument being that having an abortion was a fundamental Constitutionally protected “right”–according to the federal Constitution— and, furthermore, this right was incorporated to the states via the Fourteenth Amendment which extended some of the Bill of Rights to the state governments. The ruling never gave anyone any “rights”, it merely established that such rights already existed and that state governments could not write laws that would hinder such rights.
Sound messy? That’s because it is. It’s all arbitrary.
We now know that the Court decided to “overturn Roe v. Wade”, and that, in doing so, they did not strip all women of a “right” to an abortion. In fact, they did something rare indeed. They decreased their own power and declared that the Court, themselves, violated the Constitution with the Wade ruling. In effect, they declared their own behavior unconstitutional and handed power they had previously taken back to the realm the Constitution stipulated it should be. As I already said, it’s a rare day indeed for government itself to relinquish power once taken.
With this new ruling, they (the Justices) sent the decision and the power back to the realm in which it started: the states. The states were originally the ones left with facing these difficult questions and the founders knew that not every state would have the same answer. Hence, the beautiful, messy system of federalism, liberty and self-governance.
So, no. Regardless of anyone’s stance or beliefs about abortion or any topic not listed in the Constitution as part of the federal government’s jurisdiction, abortion belongs to the states to deal with unless the states hand that power to the federal government via a Constitutional amendment.
Until that time, all debates, all emotional diatribes, all discussions about the number of Americans who want or don’t want legal abortion, are moot and arbitrary.
Let’s deal in reality. Want to debate abortion? Sure, but remember while debating what you believe about it that it has nothing to do with the federal government. It’s far healthier for liberty for everyone to keep that perspective while ranting and railing for or against abortion.
The Liberty Belle
12 thoughts on “Roe v. Wade and the Constitution”
……..the situation from a constitutional perspective !!! Another well articulated post about the constitution . Thanks Chris for your hard work . RON
Thank you for such a clear explanation.
Once again you go where few others would……. to the crux of the problem. Your unbiased commentary on understanding the founding documents of our government is essential to looking beyond the players and their self-serving motives. But more than that it is indispensable to our understanding that these documents “GUARANTEE” our rights not grant them. Your work is seldom disappointing and always highly regarded. All the best…………..Bob
Yes Christan does do very good non-bias work according to our founding documents , and of course our guarantees not granted rights , guarantees ,if only more knew the definition of guarantees. Thanks Ron.
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Thank you for your clear explanation. I believe this issue of abortion is similar to what the United States faced during the Civil War with the issue of slavery. Many of the founding fathers would have loved to make slavery illegal but decided it would be best for liberty to leave it to the states, correct? We look back now, and all sides agree that slavery was evil, but at the time there was a strong resistance. That is what I see happening today and I hope that one day we can all look back and agree the murder of the unborn is evil and shouldn’t be a characteristic of our country at all (if it takes a constitutional amendment, then that’s what we need!) but I just hope it doesn’t take another bloody civil war to get there.
Hey Lindsey, thanks for the comment! Slavery is one of those things that was truly a juxtaposition in our founding. They founders knew this and yes, many of them wanted to abolish it–but they didn’t and that failure has haunted us since the nation began. Slavery is patently in opposition to liberty, everything the Constitution, separation of powers and states rights was meant to protect. Abortion is one of those difficult issues that fundamentally will never fully stop unless individual heart changes happen in every person, which is perhaps why the founders lefts such issues like it to the states to handle. Outlawing at the federal level would be like outlawing murder at the federal level, too much power over day to day crimes for the federal government.
Since roe was a court ruling as it says in the 14th. If congress wrote. A law. States didnt stay in boundries of 14th. And took power is that constitutional
I had to look hard for an article that explained this logically and clearly without “feelings” to send to my daughter who thinks women rights are setback from this. I asked her what rights did you lose and she couldn’t tell me.
i agree, thank you my first thought was some people need to move, and Im sorry but if your in contention with your neighbors over anything and you feel like they are all taking your rights away, move! Don’t pretend if just stick to your ideals they will all decide to see it your way! Reality check! The states that stand behind no abortion laws, are the poorest or the worst managed states in the Union! They count on Federal funding or Federal bailouts to keep themselves afloat with major bucks, so they can have electricity for there homes, food for their families, ect. Texas for example, did nothing to maintain necessary electrical infrastructure for what 50 years? There billions of oil revenue, was quickly stuffed in their pockets, voting down taxes that the rest of the country pays without squirming! So when the big freeze did come and they hadn’t maintained there most precious necessity then the lights, heat, and oil rigs stopped working we the tax paying citizens of the other 49 states had to bail them out in the middle of winter costing 100s of millions of dollars, because the countless warnings about maintaining and up grading the systems fell on deaf ears! so when it collapsed the federal government, had an emergency disaster on there hands, because low and behold that’s our system, an emergency disaster over a guaranteed failure for many years. Now I get it! So who or what gave the feds the right to make POT a federal offence? Wasn’t and isn’t that a federal over reach of its powers, culminated to do nothing less than imprison citizens for using it just because Nixon didn’t like that it was a outlet maybe to help our population deal with the fact, corruption had sleazed its way into the republican party and had decided little Vietnams oil was more important than the lives of the American people! Not to mention the Vietnamese people that lost at least 10 souls to our 1.
Thank you so much for this brilliantly worded and explanatory post as it is just what I was looking for. May I share it? I am tired of hearing people and, of course, the celebrities talking about the overturn as if they know anything about everything. It drives me nuts. Celebrities cancelling the 4th of July bc of the overturn is simply ridiculous and it makes me mad. I wish the younger generation did not look up to them so much and what they say as truth. Clearly, so many do not understand and this article is very specific on the Constitution and our “rights” to clarify any misunderstanding. I greatly appreciate the author for writing this article, and albeit, I am pro life, however, this article does a great job of not making it about that necessarily, but why scotus did what they did. Not one person I have read or heard has mentioned the fact that they took away power from the Federal government and that is such an important point. I did not even think about that but you are exactly correct and that is a good thing. Government, especially the current administration and whoever runs behind the scenes (wink wink), are trying to take way to much power and people are oblivious to this. Really all of our freedoms. So I think it is wonderful that you point out some of that power has been removed. That to me is a win because I never thought abortion was over or a constitutional right. It really gets under my skin the way people act about politics and government, rights and laws ect. I mean, really if they wanted it to be the way people act like it is already, then we would already be a communist country working off of Marxism. However, that is not what our founders wanted this country to be and I wish and hope that people will realize that. Our freedoms are being stripped away slowly that no one notices…well not everyone….i wont say who doesn’t and if you dont know then you’re one of the ones who doesn’t notice….stop listening to celebrities, stop letting people in the government or corporation’s destroy the innocence of children, stop the insanity that moral obligations include immoral acts and that “the world is changing and we must keep up with the changing world”. No, we don’t. It changes bc of us and we are letting it. So many of these concepts that people disagree with have been around forever and can be found in the bible so none of this is new. It is just becoming more prevalent bc of technology, lustening to a government who doesn’t really care about the people but of power and allowing our children to pick up role models who really shouldn’t be (Megan Rapinoe is one That xomes to.mjnd immediately). They are iggnorant but their status gives them credibility to influential minds. I won’t let my child be victim to the ways of the rich and famous. They don’t live like most people. People need to be diligent about what is truth and what is actually science. I’m sick of hearing it’s in the science yet where is the science backed evidence for your claim. Science is claimed for things that have really nothing to do with science but when it is actually science there is no mention of it rather ridiculous accusations. I won’t continue to rant but I am thankful this article shows that power has been taken away from the bigger government and that we all should be happy for that…of course we know who just will not get it ever! Thank you!
Thank you Rebecca for your comment! Please do share to as many people as you can!