“Choose Life?” Choose law, alas


THIS WEEK, CONGRESS overwhelmingly passed S.3, a federal ban on partial-birth abortion. It was a great event for many conservatives, but a terrible development for many Federalists: conservativism confronted with a fundamental conflict of law and politics.

President Bush will surely sign it, and in doing so he will endorse an extension of Congressional power wholly unwarranted by the Constitutional text. Of course, I agree with the core of paragraph one of the Senate’s findings: [T]he practice of performing a partial-birth abortion – an abortion in which the physician delivers an unborn child’s body until only the head remains inside the womb, punctures the back of the child’s skull with a sharp instrument, and sucks the child’s brains out before completing delivery of the dead infant – is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.

But while I can honestly agree with this indictment of the most disturbing of human endeavors, I cannot in good faith say that the Congressional act falls within the Commerce power cited by the Act. The abortions do not at first blush appear to “affect[] interstate or foreign commerce,” at least not to an extent consistent with the Rehnquist Court’s recent reassertion of the standard in Morrison (the Violence Against Women Act case) and Lopez (the Gun-Free School Zones Act case).

Confronted with this conflict between my heart and politics and the Constitutional limitation of powers, I regretfully hope that President Bush will veto the bill. I can’t have it both ways; sadly, I’m no Justice Brennan.

Of course, this is not the first time I’ve had to admit such conflict in law school. Surely the outcome of Lochner agrees with my conservative tendencies, but Justice Holmes had the better of the legal argument. Likewise, I certainly appreciated the outcome in Bush v. Gore, but I’m not ready to embrace the legal logic; as soundly as it rests on the precedents of Baker v. Carr and Reynolds v. Sims, I won’t gladly embrace the Warren Court’s judicial arrogance.

What I find most disheartening in all of this is that, in rejecting the bill for Constitutional principle, I accept victory by a liberal legal establishment all too happy to bend the rule of law to secure its own ends. The proper arena for the regulation of this activity – the several States – was castrated by 2000’s Stenberg v. Carhart, which struck down Nebraska’s ban in the latest emanation of Griswold, Roe, and Casey.

It’s the eternal blessing of liberal jurisprudence: the opportunity to run roughshod over the Constitutional text while counting on judicial conservatives to rest on principle or stare decisis. It was the tactic of a Florida Supreme Court whose unjustifiable power grab nearly conquered the Florida recount. It is the duplicity of a wing of the Supreme Court extolling stare decisis when it favors its outcome – Casey – yet ignoring it altogether when it does not – Lawrence.

The days that the Federal government talks about the abortion ban are the days when I wish I were a member of the American Constitution Society. Somehow – surely by cosmic coincidence! – this happy breed never finds its politics in conflict with the limitations and separations of power under the Constitution. Every conceivable expansion of Congressional power, every Court-developed limitation on centuries-old State practices, every paragraph in the Democratic platform, they’re all safe in the eyes of the ACS’s Constitution.

In short, this cosmic fortuity is surely the most mysterious of Justice Kennedy’s sweet mysteries of life. It’s the luckiest of ACS-idents.

Is there a single liberal on this campus who has ever had to sacrifice political preference for the sake of Constitutional principle? To grapple seriously with the type of quandary experienced by so many honest, conservative Federalists? I challenge any ACS member (or any other liberal, for that matter) to come forward with an example of his politics conflicting with his theory of Constitutional law. Just a single example of a deeply-held political value that he cannot support in Congress because it lies outside of the Article I powers (or is similarly blocked by any other provision)? Whether it’s a letter to the editor or a longer guest column, I’ll get it in these pages. I’ll put it under the heading, “Proving Adam White Wrong.” I’ll even stop referring to the former Madison Society as “The Acs of Evil” for a month.

But something tells me I needn’t ask my editor to save column inches for a rebuttal.

As for S.3: For now, I accept legal principle over a slaughter of genocidal proportions. I hope for a Presidential veto. But how long will I accept this moral tragedy while my liberal counterparts have their cake and eat it, too?

That’s an equally troubling question.

Adam White is the Editorial Page Editor. His column appears weekly.

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