Fred Thompson, Tim Russert, Federalism, & Abortion.

Thanks for your replies. I think the “laboratories of democracy” concept for the states works well for us serfs in two ways.

First, it allows specialization. IOW, Illinois can become a haven for nanny state liberals, while Tennessee can work to serve the interests of Constitutionally literate libertarians, for example.

Second, it encourages competition among states to attract dewsirable citizens and businesses. If one state becomes too greedy for tax dollars or enacts silly regulations, the neighbor states should benefit at their expense. If all the rules are forced or even ALLOWED to be harmonized, ALL the states can be more heavy handed than they could get away with if they were in proper competition with one another.

For these reasons, I hate all these interstate legislative and governors’/mayors’/etc. comferences because it enables them to copy each others tyrannical innovations and level the playing field between themselves, lessening our power to vote with our feet.

Makes me wonder whether the idea of overturning Roe and returning the abortion issue to the states under the guise of federalism could really be a calculated move to give SCOTUS the cover it needs to then revisit and expand the scope of the XIV Amendment.

I can dream, can't I?

Until we get Roe overturned, we can’t really do anything else from a government perspective.

Well, we COULD. We could appropriate money to run an education campaign pleading with women to NOT abort their babies. It would be patterned after the anti-smoking and anti-drug campaigns.

Oddly, for all the “pro-life” legislators, and for all the pro-choice democrats who claim they wish abortion was rare, nobody seems to be pushing for an education campaign aimed at discouraging women from having abortions.

The argument that there is some inconsistency between voting for the federal partial birth abortion ban and opposing a human life amendment to the Constitution on federalism grounds is completely bogus. It keeps surfacing on thread after thread even though nobody with any understanding of what federalism means could be putting it forward in good faith.

Fred Thompson has never argued that the federal government has no interest in abortion policy or that there is nothing the federal government can properly do with respect to abortion. If he had, it would be a legitimate gotcha to point out that he voted to ban PBA. Since he didn’t there is no inconsistency and no gotcha.

The federalist argument against a human life amendment to the constitution is that imposing an extreme resolution to a highly contentious issue on a nationwide basis is inconsistent with the proper division of responsibility between state and federal governments. Declaring that the unborn are persons within the meaning of the 14th Amendment would mandate that every state treat abortion like any other intentional homicide, in other words as a serious crime. It is unlikely that there is a political majority anywhere in the U.S. for that result and there certainly isn’t one in most states.

Sweeping mandates about controversial social policy from the central government are a bad idea. They are no more likely to achieve their purposes than any other government initiative. Remember Prohibition? Even if we could pass a human life amendment (and we can’t) it would be a hollow victory. Instead of enhancing respect for life it would diminish respect for the law. In liberal jurisdictions there would be rampant civil disobedience aided and abetted by the authorities. Our politics would be further embittered and our nation further divided.

Once Roe is out of the way the American people have to work out a compromise approach to abortion policy. In our system, the proper place for the process of working out that compromise is state legislatures, which are closer to their constituents than their federal counterparts. That’s what federalism means.

It is painful to compromise about matters of fundamental principle, but that’s life in a big diverse political community. Federalism is our best strategy for managing that size and diversity.

None of this has anything to do with the PBA ban. That ban didn’t touch on any issues we need to resolve through a complex process of political accommodation. Everybody with any moral sense understands that infanticide is wrong and that PBA is tantamount to infanticide.

The PBA ban doesn’t preempt any conversation we need to have on a state by state basis. It therefore doesn’t raise any of the federalism concerns associated with the human life amendment the the Constitution that the Republican platform has so long and so foolishly advocated.

Please let’s stop with the mindless gotcha games.

But your last statement, that PBA doesn’t preempt any conversation we have to have, is unsupported. You seem to say that if there’s enough support to pass a law, then we can do so because everybody’s OK with it, and if there isn’t enough support to pass a law, it’s too contentious to impose from above.

But on a state-by-state basis, you COULD find majorities who oppose the PBA ban imposed by the federal government. Since nothing in the constitution suggests that regulating abortion is a federal function, and as others have (I think mistakenly) claimed, there is no federal “murder” laws, it seems that the PBA ban is an undue interference in a legitimate state activity of determining exactly what abortions will be legal and which won’t be.

However, that said, you have done an excellent job of explaining how one would vote for PBA and not vote for the amendment. There obviously is a line that will be drawn to determine which things are well-settled enough for a federal law, and which aren’t. I just think under that argument all 50 states would pass PBA — there’s no compelling reason why every state’s law must be the same, no “interstate commerce” claim that having differing PBA laws somehow interferes with the relationship between the states.

Brilliant!

There is a serious argument that all abortion policy is beyond the purview of the federal government. That argument has been in eclipse since Wickard v. Filburn, but it may still make a comeback. Clarence Thomas has hinted that he might be receptive to the argument that the Commerce Clause isn’t expansive enough to justify the PBA ban. Anyone who wanted to make that argument would be precluded by the law of contradiction from supporting a PBA ban.

But that argument is not Fred’s dance. When he makes a federalist case against the human life amendment he isn’t talking about the theoretical limits of federal power. He’s talking about the limits of federal competence.

When our society is faced with contentious issues our political institutions have to work out a reconciliation. Fred’s argument against the human life amendment rests on the insight that most of this work needs to be done at the state level. This doesn’t mean that there is no role for the federal government only that the federal role is a small one.

It was in my view (and Fred’s) perfectly appropriate for the federal government to say that the barbarity of PBA has no place in the U.S. The PBA ban didn’t take much of anything away from the states. It sets a lax outer limit on our national tolerance for barbarism and leaves all the hard decisions open. I dont’ mean to suggest that every jurisdiction in the country would adopt the federal PBA ban if it were put to a referendum. Only that the federal PBA ban leaves us plenty of fodder for the national conversation we so desperately need to have.

Like Roe v. Wade before it, a human life amendment would preempt that conversation. It would mandate an extremely restrictive abortion policy nationwide leaving no incentive and no scope for political reconcilliation. That would be a Pyrrhic victory for social conservatives and a tragedy for the nation.

The federal system was devised precisely to avoid that sort of tragedy. Fred couldn’t be more perfectly on point.

There is a serious argument that all abortion policy is beyond the purview of the federal government. That argument has been in eclipse since Wickard v. Filburn, but it may still make a comeback. Clarence Thomas has hinted that he might be receptive to the argument that the Commerce Clause isn’t expansive enough to justify the PBA ban. Anyone who wanted to make that argument would be precluded by the law of contradiction from supporting a PBA ban.

But that argument is not Fred’s dance. When he makes a federalist case against the human life amendment he isn’t talking about the theoretical limits of federal power. He’s talking about the limits of federal competence.

When our society is faced with contentious issues our political institutions have to work out a reconciliation. Fred’s argument against the human life amendment rests on the insight that most of this work needs to be done at the state level. This doesn’t mean that there is no role for the federal government only that the federal role is a small one.

It was in my view (and Fred’s) perfectly appropriate for the federal government to say that the barbarity of PBA has no place in the U.S. The PBA ban didn’t take much of anything away from the states. It sets a lax outer limit on our national tolerance for barbarism and leaves all the hard decisions open. I dont’ mean to suggest that every jurisdiction in the country would adopt the federal PBA ban if it were put to a referendum. Only that the federal PBA ban leaves us plenty of fodder for the national conversation we so desperately need to have.

Like Roe v. Wade before it, a human life amendment would preempt that conversation. It would mandate an extremely restrictive abortion policy nationwide leaving no incentive and no scope for political reconciliation. That would be a Pyrrhic victory for social conservatives and a tragedy for the nation.

The federal system was devised precisely to avoid that sort of tragedy. Fred couldn’t be more perfectly on point.

Fantastic article, with clear thinking.

I firmly believe that Congress may, indeed limit abortion to preservation of the life of the mother, only. The Constitution clearly sets the Legislature over the Supreme Court. We need conservative judges on the Supreme Court to uphold the original intent of the authors of the Constitution.

Slavery could have been settled by Congress without an amendment - that fact is why the Presidential election was so controversial in 1860.

Thanks. Great article.