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June 13th, 2012

Constitutional Genocide

By Nathan Tucker

Ron Paul, as some commentators have pointed out, is a pro-life fraud who played the abortion issue in hopes of winning social conservative voters in his bid to win the Republican nomination for president.  Like all politicians, he whispered sweet nothings to the electorate while sweeping constitutional restraints under the rug.  We should not, however, be applauding the sweet nothings but his return to constitutionalism now that the primary is over.

In the wake of recent undercover investigations showing women seeking abortions based on the gender of their unborn child, the House voted recently on the Prenatal Non-Discrimination Act of 2012.  All but twenty Democrats voted against the legislation, while all Republicans, save for Congressman Paul and six others, voted for it.

Though not surprising, it is doubtful liberals would have taken the same position if abortions were performed because of race or the presence of the “gay gene.”  In contrast to those interest groups, however, the “women’s rights movement” would rather protect a woman’s “right to choose” than a woman’s right to live.

Ron Paul, speaking on the House floor, explained the reasons for his vote:  “I certainly share my colleagues’ revulsion at the idea that someone would take an innocent unborn life because they prefer to have a child of a different gender.  However,…Congress’s jurisdiction is limited to those areas specified in the Constitution.  Nowhere in that document is Congress given any authority to address abortion in any manner.”

The bill itself claims constitutional authority under the Interstate Commerce Clause.  However, since an abortion occurs entirely within a single state, that enumerated power is inapplicable even under the Supreme Court’s “lax (but not-infinite) version of the interstate commerce power.”  Additionally, as Congressman Paul noted in 2003, such an interpretation would “inadvertently justify federal government intervention into every medical procedure through the gross distortion of the interstate commerce clause.”

The bill also finds its justification in the provisions of the 13th Amendment.  That Amendment, however, only prohibits “slavery or involuntary servitude” and does not reach private acts of racial discrimination.  Noticeably, the bill doesn’t even attempt to explain of how murder, whether committed out of gender discrimination or not, constitutes slavery.

Finally, the bill justifies its ban on sex-selected abortions in the 14th Amendment’s grant of “power to enforce the prohibition on government action denying equal protection of the laws.”  The problem, however, is that it is implausible to argue that the absence of legislation can constitute state discrimination.  A denial of equal protection only occurs when a state bans abortions performed because the child was a boy rather than a girl, or vice versa.

Failing that, others have argued that the bill is constitutional under the 14th Amendment’s guarantee of “life, liberty, or property.”  However, that provision simply requires that the law be followed before the government could execute a criminal, jail an individual, impose a fine, deprive a person of their estate, sentence them to exile, etc.  The only right granted by this Clause was process—requiring the government to proceed according to the law of the land (i.e., constitutional and statutory provisions).

Yet others claim that the reference in the Declaration of Independence to the unalienable right to life mandates congressional action to ban all abortions.  However, while “Declarational” law or natural law binds the conscience and can serve as the basis for new legislation or the civil disobedience of existing law, there is simply no evidence that the Founding Generation intended it as a grant of congressional power in the absence of constitutional authority.

There is a reason the Founders created a federal government of limited, enumerated powers—the long-term protection of man’s unalienable rights to life, liberty, and property by decentralizing power.  Though tempting, creating an exception just this one time out of “a desire to do good” will create a loophole that will “wield a power too great and terrible to imagine.”

Like Sir Thomas More’s response to his son-in-law in A Man for All Seasons, the constitutionalist denies the temptation to “cut a great road through the law to get after the Devil,” knowing full well that, “when the last law was down, and the Devil turned ’round on” us, there would be no place to hide.  As More concludes, “Yes, I’d give the Devil the benefit of the law, for my own safety’s sake!”

The constitution is an equal opportunity prohibition on federal power, leaving the solution, as always, at the state level.


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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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