GW 'who cares about the constitution?' B ???? You kidding? How about Scalia and Thomas?
“ Justice Clarence Thomas, joined by Justice Scalia, wrote an interesting concurrence in yesterday's partial birth abortion case, indicating that he might be sympathetic to a Commerce Clause challenge to the federal partial birth abortion ban that was just upheld by the Court.” But no one — perhaps fortunately — raised the Commerce Clause, so Thomas and Scalia voted with the rest of them to uphold the ban..... .”
ref at Catholic Answers Forums
sickoflibs, in response to both of your posts to me, I don’t think that your defense of Ron Paul is very coherent.
While I agree with you (and Ron Paul) that a huge percentage of the laws passed pursuant to the Commerce Clause are beyond the scope of congressional power, and agree with Justice Thomas’s concurrence in Lopez that “commerce” means selling things, not manufacturing them, there are plenty of other ennumerated powers in the Constitution other than the Commerce Clause (and a Necessary and Proper Clause that warns us against reading the powers in an unreasonably restrictive way). For example, if you had read my posts carefully, you would have picked up on the fact that I was saying that Congress could ban abortion pursuant to its powers under the 14th Amendment.
Section 5 of the 14th Amendment provides that Congress has the power to enforce the provisions of the other sections of the 14th Amendment “by appropriate legislation.” Section 1 of the 14th Amendment prohibits states from making or enforcing any law that abridges the privileges or immunities of citizenship (if you’re wondering what this phrase means, ignore the embarrassing Slaughter-House Cases and read the statements in Congress by John Bingham, the Father of the 14th Amendment—the clause was meant to incorporate the individual rights in the Bill of Rights against the states, plus the Privileges and Immunities of Citizenship that had been expounded upon by Justice Bushrod Washington in the Corfield case), or depriving any person of life, liberty or property without due process of law, or denying any person the equal protection of laws.
It is clear that by allowing innocent human beings to be murdered in the womb (often in state hospitals with state funds), states are violating two (or maybe all three, depending on how you read the Equal Protection Clause) of these prohibitions, and it would be a dereliction of duty for a pro-life congressman not to legislate pursuant to Section 5 of the 14th Amendment if he was taking a principled stand against the unconstitutional misuse of the Commerce Clause. For someone who recognizes that life begins at conception to argue that Congress can’t ban abortion under Section 5 would be tantamount to arguing that Congress couldn’t prohibit states from permitting lynchings of blacks, or confiscating all firearms not owned by the state, or convicting people of felonies without a jury trial or right to counsel (by which I mean the right to bring counsel, not to receive free counsel), or any other violation of the people’s constitutional rights. When Congress and the state legislatures approved and ratified the 14th Amendment, they did not trust the Judicial Branch to be the sole means of enforcing the rights that many states had been depriving the people for so long, which is why the 14th Amendment specifically grants Congress the power to enforce the amendment’s provisions—if Ron Paul truly cared about original intent and the congressional authority conferred by the Constitution, he would not have any qualms about voting for all of the abortion restrictions that I set forth in my earlier post.
Of course, some will argue that “the courts have ruled that the unborn are not “persons” as the term is used in Section 1 of the 14th Amendment, and have separately ruled that Section 5 of the 14th Amendment may only be used to legislate consistently with judicial interpretations of the 14th Amendment.” While a liberal who believes that only the Supreme Court can interpret the Constitution could make such a statement with a straight face, it would be idiotic to argue simultaneously that the Supreme Court is wrong about the scope of the Commerce Clause and a principled congressman should not use the clause to pass laws pursuant to the clause that are not directly related to commerce, but that the Supreme Court is the final word on whether an unborn human being is indeed a “person” pursuant to Section 1 of the 14th Amendment and on when Congress may legislate pursuant to Section 5 of the 14th Amendment. Surely Ron Paul doesn’t believe that the logic behind the legally untenable majority opinion in Roe v. Wade is binding upon a member of Congress who took an oath to protect and defend the Constitution, right? Ron Paul’s refusal to vote for pro-life laws for supposed constitutional reasons shows him to be a very shallow thinker and a not very principled self-proclaimed constitutionalist.
I also think that it’s cute that you quoted Justice Thomas as saying that he would have entertained a claim that the Partical-Birth Abortion Ban was not authorized by the Commerce Clause. As you know, a federal law can be declared unconstitutional on its face because it violates some constitutional right, or it can be declared unconstitutional because it is beyond Congress’s constitutional powers. Given that Congress justified its authority to pass the PBA Ban on the Commerce Clause, Justice Thomas wanted to make clear that he would not cherry-pick on when to bring the hammer down on Congress for overstepping its legislative authority. However, Justice Thomas’s position, with which I agree, does not in any wise prevent Congress from passing the PBA Ban based on Section 5 of the Commerce Clause. It is the lazy constitutionalist who believes that because Congress always bases laws on the Commerce Clause that there’s no other source of congressional authority in the Constitution.
And here’s the kicker: the principled Ron Paul, constitutionalist supreme, who would never cast a vote based on the ends if the means do not follow his strict reading of the Constitution . . . voted for the Partial-Birth Abortion Ban every time it came before the House! That’s right, the same so-called pro-lifer who, because of his deep respect for the proper role of the U.S. Congress and as part of his strident campaign against the misuse of the Commerce Clause, voted against the Child Custody Protection Act (making it a crime to transport a minor across state lines for an abortion in violation of state parental-notification laws) every time the House voted on it, and against the Unborn Victims of Violence Act (recognizing unborn children harmed in violent attacks that were already federal crimes as separate victims in addition to the mother) every time the House voted on it, and against the Child Interstate Abortion Notification Act (similar to the Child Custody Protection Act that had never become law) every time he voted on it (and even voted for two amendments that would prevent fewer abortions but would keep the law just as irreconcilable with the Commerce Clause), simultaneously voted for the Partial-Birth Abortion Ban, which is just as outside the scope of the Commerce Clause as the other three abortion laws, every time the bill came before the House. Either Ron Paul is willing to legislate illegitimately pursuant to the Commerce Clause when it is politically expedient for him to do so (he would have been tarred and feathered by his constituents had he voted against a PBA Ban that even longtime pro-aborts such as Patrick Kennedy and Pat Moynihan supported), or he recognizes that Congress may ban abortion pursuant to Section 5 of the 14th Amendment (reliance on which was not actually mentioned in the bill) but is only willing to ban abortion pursuant to Section 5 when it is politically expedient for him to do so. In other words, Ron Paul is a charlatan.