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Wednesday, November 09, 2005

Roe and the Commerce Clause

Alito is about to be skewered for not favoring judicial precedent enough. The recent ruling on Raich (that upheld federal power to enforce anti-drug laws) should make anyone fear a Court that does not take a strict view of the powers of government as stated in the Constitution and as intended by the framers. Pro-choice, pro-Roe fans should fear a justice that would blindly follow precedent and does not uphold a strict reading of the Commerce clause.

As Jacob Sullum wrote:

The Partial Birth Abortion Ban Act of 2003, purportedly grounded in Congress' power to "regulate Commerce with foreign Nations, and among the several States," prohibits the abortion procedure known in the trade as "intact dilation and extraction." The law applies to "partial birth" abortions "in or affecting interstate or foreign commerce," which is boilerplate meant to encompass all uses of the forbidden method.

In July the U.S. Court of Appeal for the 8th Circuit ruled that the ban is inconsistent with Roe v. Wade because it does not include an exception for abortions deemed necessary to protect the mother's health. But even in the absence of Roe v. Wade, the law would be unconstitutional because Congress has no authority to regulate abortion, a power the Constitution reserves to the states.

Prior to Roe the various states had varying statutes regarding abortion. Public opinion in almost all of the 50 states shows people would allow some form of abortion in different degrees. Obviously, a New Jersey or New York would have greater services and broader choices than a more conservative state would.

Writes Sullum:

Since most voters do not want the government to ban or severely restrict abortion, most state legislatures would not choose to do so in the wake of Roe v. Wade's reversal, although some might. Regulations would vary from state to state, and abortion policy would become another factor in the competition between states for residents and tax dollars. Instead of conforming to a single, nationwide policy, people could vote with their feet for the approach they liked best.

That is how things stood prior to Roe. That is the American structure that allows for experimentation and public discourse in the legislative process. The only way Congress could decide things that are not truly of inter-state commerce should be a through the difficult process of ratifying a constitutional amendment. Partisans are always looking for the easy way out. It winds up being more damaging in the long run.

Following the original intent of the constitutional framework has nothing to do with the framers not anticipating new technologies. It is a framework of a system of government that recognizes the sovereignty of individuals and their local decisions. Activist judges merely substitute their opinions on policy for those of the People. It is wrong and unconstitutional.

2 Comments:

At 7:27 AM, Anonymous Anonymous said...

Best regards from NY! » » »

 
At 2:52 PM, Anonymous Anonymous said...

Keep up the good work »

 

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