The Corner

Federalism, Ctd.

My emailer is not giving up that easily: We “let” each state decide how to punish most murderers, but only within prescribed Federal court-mandated parameters. States are only allowed to implement the death penalty because the Supreme Court has deemed that it does not constitute cruel or unusual punishment for certain types of major criminals. Let a state pass a law that allows capital punishment for shoplifting and see how fast the Federal courts stop it!

I admit ignorance on the history of legalized abortion in this country, but I assume from your message that 1960 was the year that a state first legalized abortion. [I just used 1960 because I know all states prohibited abortion at that time, and was too lazy to look up which year the first legalization took place. — RP] Going with this assumption, then no, the U.S. was not unprincipled from 1889-1960 because none of the states had legalized abortion; there was no need for an amendment. We don’t have a constitutional amendment against ritual sacrifice, either, but it (along with billions of other theoretical amendments) is unnecessary because no state currently allows it. If, however, California were to legalize ritual sacrifice and the Supreme Court were to rule that states have the right to legalize it if they want to, then I would definitely support an amendment to stop it. And yes, it would be unprincipled to take the position that ritual sacrifice is an issue best left to the states.

My response: Hell hath no fury like a Ponnuru accused of being unprincipled.

The Supreme Court got into the business of regulating the death penalty in recent decades. Whether it was right or not can be debated. Let’s assume, for the sake of argument, that we were living in a country where the Constitution, properly interpreted, left the states alone in this matter–that the historic rule were correct and applied here. How would that set of affairs be unprincipled? Child-abuse laws are almost entirely state-level. Unprincipled?

As I’ve said before, I believe that the Fourteenth Amendment’s guarantee of equal protection to all persons requires Congress to see to it than the unborn are protected from homicide in all 50 states. But let’s assume that the amendment did not exist (or that I’m wrong, as the vast majority of legal analysts believe). It’s 1867, and some state decides to permit abortion. You could very well try to amend the federal Constitution to block this. Or you could just try to change the law in that state. Let’s say that it’s easier to work within that state to change the law than to amend the federal Constitution–as it very well could be. Under those circumstances, it would make a great deal of sense for pro-lifers to work within the state; it would be perverse not to do so. And there would be no reason in principle that they would have to amend the Constitution: the course of action they should choose would depend on those circumstances.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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