How states can man-up and stop abortion, Part I

Posted By | August 15, 2019 12:58 pm

Language of Liberty – By Publius Huldah

If the American People (and American lawyers) had been properly educated, they would know that our federal Constitution created a federal government of enumerated powers only, and that most of the powers delegated to Congress over the Country at Large are listed at Art. I, §8, clauses 1-16, U.S. Constitution.

“Abortion” is not listed among the enumerated powers. Therefore, Congress has no power to make any laws about abortion for the Country at Large. And since “abortion” isn’t “expressly contained” in the Constitution, it doesn’t “arise under” the Constitution; and since state laws restricting abortion don’t fit within any of the other categories of cases the federal courts are authorized by Art. III, §2, cl. 1 to hear, the federal courts also have no power over this issue.

So from the beginning of our Constitutional Republic until 1973, everyone understood that abortion is a state matter. Accordingly, many State Legislatures enacted statutes restricting abortion within their borders.

But in 1973, the U.S. Supreme Court issued its opinion in Roe v. Wade and made the absurd claim that Section 1 of the 14th Amendment contains a “right” to abortion. In “Why Supreme Court opinions are not the ‘Law of the Land,’ and how to put federal judges in their place,” I showed why the Supreme Court’s opinion in Roe is unconstitutional.

But Americans have long been conditioned to believe that the Constitution means whatever the Supreme Court says it means. Accordingly, for close to 50 years, American lawyers and federal judges have mindlessly chanted the absurd refrain that “Roe v. Wade is the Law of the Land”; state governments slavishly submitted; and 60 million babies died.

So who has the lawful authority to stop abortion?

  1. Congress has constitutional authority to ban abortion in federal enclaves and military hospitals

Over the federal enclaves, Congress has constitutional authority to ban abortion: Pursuant to Article I, §8, next to last clause, Congress is granted “exclusive Legislation” over the District of Columbia, military bases, dock-Yards, and other places purchased with the consent of the State Legislatures (to carry out the enumerated powers). Article I, §8, cl.14 grants to Congress the power to make rules for the government and regulation of the military forces. Accordingly, for the specific geographical areas described at Article I, §8, next to last clause, and in U.S. military hospitals everywhere, Congress has the power to make laws banning abortion.

  1. But federal courts have no constitutional authority over abortion

Article III, §2, cl. 1 lists the ten categories of cases federal courts have authority to hear. They may hear only cases:

  • “Arising under” the Constitution, or the laws of the United States, or treaties made under the authority of the United States [“federal question” jurisdiction];
  • Affecting ambassadors, other public ministers & consuls; cases of admiralty & maritime jurisdiction; or cases in which the U.S. is a party [“status of the parties” jurisdiction];
  • Between two or more states; between a state & citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state (or citizens thereof) & foreign states, citizens or subjects [“diversity” jurisdiction].

These are the only cases federal courts have authority to hear. Alexander Hamilton wrote in Federalist No. 83 (8th para):…the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. [boldface added]

Obviously, State laws restricting abortion don’t fall within “status of the parties” or “diversity” jurisdiction; and federal courts haven’t claimed jurisdiction on those grounds. Instead, they have asserted that abortion cases “arise under” the U.S. Constitution!

But in Federalist No. 80 (2nd para), Hamilton states that cases “arising under the Constitution” concern…the execution of the provisions expressly contained in the articles of Union [the U.S. Constitution]… [boldface added]

Obviously, “abortion” is not “expressly contained” in the Constitution. So it doesn’t “arise under” the Constitution. In Roe v. Wade, the Supreme Court had to redefine the word “liberty,” which appears in §1 of the 14th Amendment, in order to claim that “abortion” “arises under” the Constitution.

Continued in Part II next week.

Publius Huldah is a retired litigation attorney with a degree in philosophy, specializing in political philosophy and epistemology (theories of knowledge). She now writes extensively on the U.S. Constitution, using the Federalist Papers to prove its original meaning and intent. Read full article with footnotes and links at Published with permission.

The Language of Liberty series is an outreach project of the Center for Self Governance, an educational organization dedicated to training citizens in principles of liberty. The views expressed by the authors may not reflect the views of CSG.      

comments » 1

  1. Comment by Debra Rowlands

    August 15, 2019 at 1:38 pm

    “Man up and stop abortion”. Maybe if some of these *men* actually DID “man up” , there would be less abortion. Take responsibility. And that means financially, emotionally, physically. But in reality, it does not happen. Most times, the woman is on her own. Damned if you do, damned if you don’t. On one hand, you want abortion to stop, as a man, but also want to cut programs to aid people (many who are single, poor women) and their children. Many single parents, or women who are divorced with children, live in poverty. Many get no support from the father, financially or otherwise. Indeed, many divorced fathers, at the least, check out financially, and just as often, emotionally; they divorce, they cease to be a father too. At the end of the day,I find it ironic your choice of words, “man up” about an issue that effects women. WOMEN. Not men. Man up, indeed.

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