Republicans & Real Federalism

President Trump signing legislation that bans federal funds from going to international organizations that provide abortions during his first days in office.

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With all the febrile ebullience of a re-run of a 1950s sit-com, the Republican Party will descend upon the city of San Diego this month determined to efface any evidence that Pat Buchanan ever existed and committed to staging the miraculous spectacle of a political convention without any politics. Yet most Republicans, whether or not they are present at the convention, will find the experience edifying, if not inspiring, and they will have little trouble discovering in the withered Bob Dole a leader in the mold of such champions as Dewey and Bush. President Clinton and those members of his family and cabinet who remain out of jail will be hooted and booed to the rafters, and there will be plenty of sunshine to enlighten the citizens about the brilliance of the age that is about to dawn on the Republic once they deposit their fate into Mr. Dole’s hands. If, in the tradition of Lincoln, the Republicans can fool enough of the people enough of the time, they might even accomplish their purpose, which is to allow Mr. Dole to complete his entry in Who’s Who as he believes it should be engraved for the ages.

In the absence of Mr. Buchanan and his followers, we can expect few issues or personalities of substance to appear before the San Diego convention, and even if they did, they would only confuse most of the delegates. The Buchanan forces may be able to win some or several fights over the platform, and Mr. Dole might even peruse the document during some idle lull in his subsequent progress around the nation. But on the whole, Republicans today care little for issues or their political and philosophical substrata, and with fantasies of triumph dancing before their eyes, most will not be disposed to ponder the metaphysics of the course on which they and their new captains are determined to sail.

One issue on which there will be little pondering but much oratory is abortion and what the party’s new captains, quivering with principle, will do to abolish it. Throughout the primaries, for all the candidates’ gumbeating about free trade and the flat tax, abortion seemed to be the engine that drove most of the voters. Both Alan Keyes and Bob Dornan vowed that they were even more committed to its extirpation than Buchanan, and even the centrist-to-liberal contenders swore that they were no less attached to the sanctity of embryonic life than those on their right. Despite the presence of a loud pro-abortion faction in the party and the uncertain simpering of such pro-lifers as Ralph Reed of the Christian Coalition, there is little prospect that the platform will differ from earlier ones with respect to the issue.

This is unfortunate, since that position is neither a sound one for the serious restoration of the kind of constitutionalism Republicans should support nor an effective one for curtailment of the practice of abortion. It should by now have become clear that the fixation of the Republican Right on the issue of abortion has become an impediment to the fulfillment of what ought to be their larger agenda.

The position of the platform on abortion is that the Republicans support what is known as the “Human Life Amendment,” which reads:

The unborn child has a fundamental individual right to life which cannot be infringed. We therefore reaffirm our support for a human life amendment to the Constitution, and we endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children.

The language has been in the platform since 1980 and has been endorsed by all the nominees since then, and some of them may actually have wanted to see it enacted. The idea of the Human Life Amendment (HLA) is that, by defining the unborn fetus as a living human being, the Amendment will bring the babe under the protection of the Fourteenth Amendment’s commitment that no state “shall deprive any person of life, liberty, or property, without due process of law.” Once it is clear that the fetus is a “person,” argue the Amendment’s supporters, abortion will be outlawed throughout the country, and both Roe v. Wade and all state and federal directives authorizing the operation will be overturned.

The most common argument against the HLA is the purely pragmatic one that it alienates voters, especially women, and that by jettisoning it the Republicans could expect to seize votes from the Democrats. That argument may contain some truth, but it is usually a blind, voiced by those who really do support abortion or the right to have one and who are less concerned with Republican political prospects than they are with pushing a “pro-choice” agenda. In any case, the appeal to political pragmatism, despite its attractions for the party’s mainstream, ought to be irrelevant to those more concerned with using the party as a vehicle for an authentically radical conservatism. From that perspective, the problem with the Human Life Amendment is that it simply is not radical enough.

In the first place, in the sixteen years the Amendment has been in the platform, it has not been passed by either house of Congress and shows no sign of being passed in the near future. It has not prevented a single abortion anywhere in the country, and even in the unlikely event that Mr. Dole as President seriously supported its passage and a Republican House and Senate approved it, few state legislatures would ratify it. Indeed, so useless has the Human Life Amendment been to the pro-life cause that the most zealous supporters of abortion in the party and the country have every reason to keep it in the platform. Republican presidents and lawmakers can continue to endorse it, periodically pray in public for its passage, and gain all the political support that such theatrics will yield, but the Amendment won’t be passed and it won’t make any difference. As long as the Human Life Amendment remains in the platform and remains the favored conservative-Republican remedy for abortion, what the pro-lifers call the “slaughter of the innocents” is likely to continue unabated.

But in the second place, and more seriously, the Human Life Amendment does absolutely nothing to redress the root causes of the destruction of constitutionalism that the Supreme Court has inflicted on the country and indeed does much to confirm and advance it. The Amendment relies on the flawed and illegally passed Fourteenth Amendment and on a misinterpretation of the Fourteenth’s intent, and by doing so it essentially ratifies, or acknowledges the legitimacy of, the many usurpations of states’ rights that the Court has imposed.

Since the 1920s, and especially since the Warren era, the Court has relied upon the fiction that the Fourteenth Amendment “incorporates” the restrictions on the federal government contained in the Bill of Rights and allows the Court to strike down any and all state and local laws that meet with its displeasure. The flaws of the “Incorporation Doctrine” have been relentlessly exposed by the scholarship of Harvard constitutional scholar Raoul Berger and others, but that has not prevented the Court from using it as a weapon to strike down state laws governing obscenity and subversion, racial and religious discrimination, sexual misbehavior, and voting practices, as well as laws against abortion.

The result of the Incorporation Doctrine has been the political triumph of modern liberalism through illicit judicial enactment or repeal of laws that could not have been enacted or repealed through democratically controlled legislative processes at state or federal levels. Earl Warren’s admirers occasionally are bold enough to acknowledge this. As liberal legal historian Paul Murphy writes, Warren “utilized the judiciary as a constructive policy-making instrument” and “intent more upon social ends than upon legal subtleties and refinements, and candidly prepared to say so, he had pushed the nation, through his Court’s legal rulings, to take public actions that Congress was unprepared to recommend and the executive was incapable, unilaterally, of effectively securing.” But Congress was “unprepared” and the executive was “incapable” for the simple reason that, unlike Justice Warren and his colleagues, their occupants had to face the inconveniences of elections, and for all the high art and science of fooling some of the people some of the time, there are limits to how effectively this can be practiced by elected lawmakers.

The reader may be spared the theory of the Incorporation Doctrine, but she does need to know that it is through the politically-shaped opacity of the language of the Fourteenth Amendment that the Court has succeeded in imposing the hoax of the Doctrine upon an unwary nation, and it was precisely through the device of “incorporation” that the Court invented a “right to privacy” in its 1965 Griswold decision and not long afterwards used that fabricated right to legalize abortion throughout the 50 states in Roe v. Wade in 1973.

The strategy of the Human Life Amendment does not operate through the Incorporation Doctrine, but it does rely on the expansive power granted the federal government in the first section of the Fourteenth Amendment and is of a kindred spirit with the doctrine, a spirit defined by the conviction that the states and their voters are on no account to be trusted and that any curtailment of their powers and liberties by federal mechanisms is a progressive step. While the Fourteenth Amendment clearly denies states the power to deprive persons of life, liberty, and property without due process and gives Congress power to enforce these rights, it is a serious error for conservatives to rely on the Fourteenth Amendment to restrict the rights of the states still further, even for so holy a cause as ending abortion. But that is exactly what the Human Life Amendment proposes to do. In doing so, it would not “restore” much of anything and certainly not the constitutional federalism that prevailed prior to Roe and prior to the Incorporation Doctrine, but it would make use of federal power to impose a uniform rule on the states that anti-abortion forces happen to applaud.

Prior to the Roe decision, two states had legalized abortion through legislative acts, and a few others had begun revising their laws prohibiting it. This was fully in accordance with federalist usages, and the result, had the usages been allowed to continue, would probably have been a diverse set of state laws that sometimes forbade, sometimes permitted, and sometimes merely restricted and regulated abortion. That result, while not to the taste of anti-abortion abolitionists, would have been perfectly in accordance with the way in which the Constitution intended the country to be governed, and that, not the complete extirpation of abortion through the further extirpation of the rights of the states, is the end to which serious radical conservatives should work.

By relying on the Human Life Amendment, the anti-abortion party will contrive not only to allow abortion to persist unabated but also, in the unlikely event the Amendment is ever adopted, to rely on the very same expanded federal power that lies at the base of liberal dominance. And, even if the Amendment never passes into law, by invoking it as the principal remedy for abortion favored by conservatives, anti-abortionists will bind themselves to the illicitly expanded federal power created by misuse of the Fourteenth Amendment. Rallying around the Human Life Amendment, in other words, will lock the American Right into support for the very federal leviathan and its pseudo-constitutional foundations that renders fulfillment of most of the rest of the Right’s agenda impossible.

What Republicans, conservatives, and anti-abortionists should do is rid the platform of the Human Life Amendment as now written and craft another, one that, while expressing abhorrence of abortion and affirming that the fetus is a human being, also takes aim at the root of liberal dominance, the Incorporation Doctrine itself. Instead of falling into the trap of designing “litmus tests” on political issues for judicial appointees, the party should insist that its appointees pass a litmus test on an actual constitutional issue — namely, whether the appointee does or does not reject the Incorporation Doctrine, whether he will base his rulings on an accurate understanding of the intent of the Constitution, and whether he is prepared to reject not only the doctrine but also the many evil rulings that have followed from it, including the “rights” to privacy and abortion.

The party also should draft and adopt as a principle of its platform a specific affirmation of the states’ rights guaranteed by the Ninth and Tenth Amendments, and it should commit itself and its standard bearers to work for the restoration of those rights. In doing so, the Republicans would reach to the roots of liberal power and pull them up. They would thereby rescind Roe v. Wade, abolish the court-created “right” to an abortion, allow the states to settle the issue in accordance with what the citizens of the states and their norms demand, and effectively end the abortion issue as a national political issue. They would also reach far beyond the abortion issue itself to all other instances in which the political Left has “utilized the judiciary as a constructive policy-making instrument” and, in a word, restore the Constitution and the state and local authority that the Constitution’s federalism recognizes. Finally, by allowing states to decide for themselves whether abortion should be legal or not, they might even succeed in abolishing abortion in some, maybe even many, states. That in itself is a bit more than the Human Life Amendment has ever accomplished or seems likely to accomplish.

Of course it will not happen. There are few in the Republican Party today who even understand what real federalism is, and the preferred Republican remedy for the handful of illicit usurpations by the courts to which they object at all is to support still more expansion of federal power. For a party that thinks only of winning elections and getting the government and the public purse into its paws, reducing federal power holds no charms, and for the new abolitionists who demand the national imposition of their own moral obsessions through centralized power, federalism is simply the work of demons. Americans who want something resembling the old Constitution will be more likely to find it on the re-runs of 1950s sit-coms than in anything the Grand Old Party proposes.

This article was originally published in Chronicles Magazine in August 1996.