[The following editorial of mine appeared in the Bloomington Herald-Times on 7 June, 1997. Typos in the published version have been corrected inside brackets. Unbeknownst to me, an article entitled Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban Act by Glenn H. Reynolds and David B. Kopel appeared in the fall 1997 issue of the Connecticut Law Review (30 Conn. L. Rev 59) after my piece was written. Note especially the section of Reynolds and Kopel dealing with Justice Thomas' concurrence in the Lopez decision. ]

Abortion ban show[s] inconsistency of Hostettler and conservative[s]

by Paul Hager

The following guest column was written by Paul Hager, who was the 1996 Libertarian candidate for 8th District Representative.

When I was the Libertarian candidate for Congress in 1996, the ban on so-called partial birth abortions was a hot issue. I strongly disagreed with my opponent, Rep. John Hostettler, who voted for the ban. However, the nature of the disagreement was not centered on the rightness or wrongness of abortion, not the validity of the Roe v. Wade decision. Principled Libertarians are on both sides of the abortion question, yet we agree that Congress has no legitimate power to legislate in this area.

The problem, in a nutshell, is that the administration of criminal justice, whether it be murder, assault, rape, or a host of other crimes, is not one of the Article I, Section 8 powers given to Congress. Even if abortion is murder, it is not within the legislative domain of Congress -- it is one of the powers reserved to the states.

The argument is straightforward. The Constitution, as written, was intended to strictly enumerate the powers that the states and the people had delegated to it. However, during the ratification debates, critics of the Constitution objected to the "general welfare" clause at the beginning of Article I, Section 8, and the "necessary and proper" clause at the conclusion, claiming that together they gave Congress carte blanche to do almost anything, and thus undermined the doctrine of enumerated powers. James Madison, one of the framers of the Constitution, explained in Federalist #41 that the "general welfare" clause was merely a preamble for what was to follow and nothing more. He even ridiculed the critics' understanding of English grammar and punctuation, saying that their objections were groundless. However, the anti-Federalists, as the critics were called, held enough political power that they had to be mollified if the Constitution was to be ratified, and Madison and other Federalists pledged to attach a Bill of Rights to address their concerns. The 10th Amendment was the result.

Today, conservatives who profess to favor limited government and who are quick to invoke the 10th Amendment in areas of economic regulation, are just as quick to jettison it when it conflicts with their ideology. On the matter of abortion, conservatives like Howard Phillips point to Article IV and the 5th Amendment due process clause to justify federal action. But this argument doesn't fly unless the 14th Amendment, which extended the Bill of Rights and the privileges and immunities of Article IV to the states, is invoked. This poses additional problems for conservatives who have attempted to limit the scope of the 14th because it has been the basis of a host of Supreme Court decisions that have invalidated state laws in conflict with the Bill of Rights. (Liberals, who generally like the 14th, get all goofy when the 2nd Amendment is involved but that is a topic for another time.) In any case, the 14th only applies to state government action, and doesn't give the federal government the power to reach past the state government down to the level of individual citizens, which it would have to do for Congress to have the power to act.

It would seem that conservatives do understand the above arguments because the text of the 1996 ban invoked, not Article IV, nor the 5th Amendment, nor even the 14th, but instead the commerce clause of Article I, Section 8. So, the favorite clause of the hated big government liberals is embraced by conservatives when it serves their ideology.

Moreover, under Roe v. Wade, states already may prohibit all third-trimester abortions, not just the so-called partial birth procedure, so long as the prohibition doesn't jeopardize the life or health of the woman. Thus the congressional ban is clearly federal usurpation of reserved state power and a violation of the 10th Amendment.

I have the greatest respect for Rep. Hostettler. He is an intelligent exponent of the conservative position and one of conservatism's most consistent advocates for limited government. In the past, I have defended him in the pages of The Herald-Times when he has stuck to that principle. However, like most of his conservative brethren, the issue of abortion results in an end-justifies-the-means reading of the Constitution that undermines the very principles he seeks to uphold.