In today’s debate, Princeton professor Robert P. George asked the participating presidential candidates whether they believe Congress should attempt to protect unborn human beings by exercising its power, granted in section five of the Fourteenth Amendment, to guarantee equal protection of the laws to all persons. Most of the candidates said yes. Two registered disagreement. Since this question has been debated in the Corner several times over the years, I thought it might be worthwhile to comment on the dissents.
Rep. Ron Paul (R., Tex.) worried that this interpretation would mean that the Fourteenth Amendment had repealed the Ninth and Tenth Amendments. Now it is clearly the case that the later amendment, to the extent it conflicts with previous ones, trumps them. But that conflict is partial rather than total. The reading of the Fourteenth Amendment advanced by Professor George no more repeals the Tenth Amendment than the Thirteenth Amendment did. Yes, one might have read the Tenth Amendment, before the Thirteenth Amendment, to forbid the federal government from interfering with state laws permitting slavery; and one can no longer do so. That’s why we adopted the Amendment—to, well, amend the Constitution that had previously existed. It is no answer at all to George’s question to note that it means that the Fourteenth Amendment worked a change in the Constitution.
Former Gov. Mitt Romney said that for the Congress to disregard Supreme Court precedent on abortion would be to court “constitutional chaos.” Both George and former Speaker Newt Gingrich hinted at answers to this objection: George by citing Lincoln’s refusal to treat the Supreme Court as having established a principle binding on the other branches of government, Gingrich by noting that the Court itself had not made this kind of overblown claim to interpretive supremacy until 1958.
But another answer is possible, and it takes the form of a question: What does Gov. Romney think of the effort by Congress and the president to ban partial-birth abortion during the last decade? The Supreme Court had already struck down state laws against partial-birth abortion. Was it “constitutional chaos” for Congress to ask it to reconsider the question? And on what constitutional ground does Romney think Congress acted? Does he believe that Congress was regulating interstate commerce? Or does he see that it was attempting to vindicate rights of unborn persons to have the same protection from having their skulls punctured and vacuumed out that other human beings enjoy?
The premise of George’s question, in short, is in practice widely shared—perhaps even by Governor Romney.