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