The Corner

Partial-Birth and Federalism

So Prof. Adler concedes that my equal-protection case for the constitutionality of a federal partial-birth abortion ban is “reasonable,” but says that Congress has not made the necessary findings to sustain that case. Ok, professor: What’s the justification for the Court’s striking down an otherwise constitutional law simply because the Congress doesn’t make an explicit argument, within the law itself, for its constitutionality? Let’s go further: Let’s say the Congress makes a law that has a constitutional justification, but the law itself makes some zany, unsound constitutional argument for itself. Should the Court strike it down on that basis? I think that idea is itself a little strange. If my argument about equal protection is sound, it seems to me to follow that a constitutionally conscientious congressman is able, and possibly obligated, to vote for the ban and the Court is obligated to uphold it.

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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