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Roe v. Wade and the Constitution

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I’m sure most of you have now read the “leaked” documents about the potential 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.

The Issue

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.

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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 infringedor 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.

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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.

IF the Court decides to “overturn Roe v. Wade”, they would not be stripping all women of a “right” to an abortion. They (the Justices) would simply send 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

6 thoughts on “Roe v. Wade and the Constitution”

  1. ……..the situation from a constitutional perspective !!! Another well articulated post about the constitution . Thanks Chris for your hard work . RON

  2. Bob Manderville

    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

  3. Pingback: Roe v. Wade and the Constitution – The Liberty Belle – PatriotNewsSite.com

  4. 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.

    1. C. McMasters Ph.D.

      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.

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