The Corner

Sources of Authority

Congress only has those powers explicitly enumerated in the Constitution When confronted with a statute that exceeds such powers, the Supreme Court has the obligation to strike the statute down. When there is doubt as to whether a statute falls within Congress’ authority, it is reasonable for the Court to construe the statute narrowly so as to preserve its constitutionality. It is not reasonable for the Court to simply assume that Congress has found a questionable factual predicate — e.g. that the 14th Amendment extends to the unborn or that a late-term abortion ban a prophylactic measure necessary to protect newborn infants. It is the lesser evil for the Court to strike such a statute down until such time as Congress has shown the Court the basis for its action.

Ramesh is certainly correct that I ultimately disagree with his substantive claim as well. Ramesh’s substantive argument provides the justification for the complete nationalization of criminal law and much health law. The reality is that states have always determined when life begins and when life ends for the purposes of criminal law, and states have made different judgments over time as to these issues. Such judgments are inherent in each state’s police power. Congress has no such power under our system, and I find untenable any interpretation of the 14th Amendment that would seem to imply otherwise.

It also seems to me that if the 14th Amendment’s equal protection guarantee extends to unborn life — a necessary predicate for Ramesh’s claim that Congress can “enforce” this guarantee through a PBA ban or other legislation — this would suggest Roe is wrong not because it nationalized the abortion question (the position of Scalia, Rehnquist, Bork, et al.), but because it failed to find that legal abortion is itself unconstitutional under the 14th Amendment. This is another reason why I find Ramesh’s constitutional interpretation unconvincing.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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