I’m with Andy, not the editors, on the constitutionality of the federal regulation of abortion. Andy writes:
The editors proclaim, “We are persuaded that the undoubted federal power to defend basic civil rights under the 14th Amendment” does the trick. Count me out of the “we,” for I harbor significant doubts.
The “who would dare doubt this” appeal is surprising to find in our pages. Until about five minutes ago, the protection of abortion itself was “undoubted” because progressives were haughtily confident that no one would call them on their dearth of constitutional mooring. I fear my colleagues go with “undoubted” because they don’t want to say aloud what this implicitly means: They believe the supposed federal power to regulate abortion is a matter of substantive due process. It’s just that, unlike progressives, they undertake to accomplish a limited ban rather than make it available on demand.
I hope that we are not going to see conservatives replace one fringe theory about the connection between abortion and the Constitution with another. I opposed Roe because it was built atop precisely the sort of inchoate, results-driven sophistry that renders constitutions mere political enabling acts. The idea that — actually! — the 14th Amendment permits Congress to pass a federal ban strikes me as being cut from precisely the same cloth as was Roe. That I would personally favor the outcome were such an interpretation to be adopted does not change that one bit.
For the reasons Andy explains well, the originalist argument for the editors’ 14th Amendment claim is so weak as to render the maneuver a veritable bait-and-switch. For 50 years, Roe’s critics argued publicly (and correctly) that the Constitution is silent on the matter of abortion, and that the issue was therefore reserved to the states. And suddenly, with next to no debate on the matter, and with little attempt to build any sort of case, we’re insisting that we are “persuaded” about “undoubted federal power”?
I am not.