By Charles C. W. Cooke
Monday, June 27, 2022
Americans searching for evidence that
the Supreme Court’s illegitimate half-century of interference in American
abortion policy has had an incorrigibly corrupting effect on the integrity and
coherence of our judicial system need look no further than this line from the
dissent in Dobbs, which, in a crowded field of contributions,
jumped out at me for the sheer extravagance of its cynicism:
Most
threatening of all, no language in today’s decision stops the Federal
Government from prohibiting abortions nationwide, once again from the moment of
conception and without exceptions for rape or incest.
Can the dissenters be serious?
Exactly what sort of “language in today’s
decision” would Justices Breyer, Sotomayor, and Kagan have liked to see? What
could have occasioned the majority’s adding such language? And how could it
have been included without setting a broader constitutional precedent that, in
any other circumstance, the trio would have strenuously opposed? I understand
that the dissenters are worried about the practical effects of
overturning Roe. But if the Dobbs majority had,
indeed, decided preemptively that the federal government was barred from
“prohibiting abortions nationwide,” it would have undone decades of
progressive-led expansions of the commerce clause and the necessary-and-proper
clause at a single stroke, and made the stare decisis complaints
that have been advanced by the dissenters look like a walk in the park. Is that
really what they wanted?
The dissenters are, of course, correct to
deduce that if there is no right to abortion in the Constitution — which was
the only holding in Dobbs — then the federal
government is not explicitly prohibited from regulating or banning abortion.
But that a given federal action is not explicitly prohibited does
not, under our constitutional order, mean that the federal government
necessarily enjoys the power to take that action in the first place.
As it is written, the Constitution grants the federal government only a handful
of enumerated powers, which are limited yet further by the Bill of Rights.
In Federalist No. 45, James Madison neatly explained the
model:
The powers
delegated by the proposed Constitution to the federal government, are few and
defined. Those which are to remain in the State governments are numerous and
indefinite. The former will be exercised principally on external objects, as
war, peace, negotiation, and foreign commerce; with which last the power of
taxation will, for the most part, be connected. The powers reserved to the
several States will extend to all the objects which, in the ordinary course of
affairs, concern the lives, liberties, and properties of the people, and the
internal order, improvement, and prosperity of the State.
Unfortunately, this presumption has eroded
over time, to the point at which the federal government now presumes almost
unlimited power, and accepts checks on its authority only via the Bill of
Rights, the equal-protection clause, or whatever a transient majority on the
Court contends might be contained within the free-candy machine that is the
“substantive due process” doctrine. Naturally, that erosion did not happen on
its own: It was achieved over time through the deliberate and sustained efforts
not of the Federalist Society, but of the Democratic Party and the judges it
has repeatedly put on the bench.
Which is to say that, if, in a few years’
time, Congress tries either to ban or to preempt abortion on a national basis,
it will not be relying upon a conservative case for federal
power, but on a series of enumerated-powers-doctrine–exploding precedents that
began during the New Deal, and that have been defended ruthlessly since that
time by the institutional American Left. Insofar as they have upheld or
expanded those precedents whenever possible, Breyer, Sotomayor, and Kagan are a
key part of that Left. That, in the course of a relentless broadside in favor
of stare decisis, those judges had the gall to
complain that the majority in Dobbs enclosed “no language”
that circumscribes the unconfined federal role that they have spent their
entire careers sustaining is nothing short of astonishing.
Back in 2005, the Supreme Court had
occasion to reconsider the holding in Wickard v. Filburn, a 1942
case that held that the federal government had the power to regulate how much
wheat an individual could grow on his own land for his own consumption. Even in
such cases as an “appellee’s activity be local and though it may not be
regarded as commerce,” the Court had ruled in Wickard, “it may still,
whatever its nature, be reached by Congress if it exerts a substantial economic
effect on interstate commerce and this irrespective of whether such effect is
what might at some earlier time have been defined as ‘direct’ or ‘indirect.’”
On paper, the plaintiff in the vehicle for reconsidering that ruling, Gonzales v. Raich, was a far more
sympathetic figure to progressives than the plaintiff in Wickard,
Roscoe Filburn. She was a Californian named Angel Raich, and she had been
growing cannabis at home, for personal medicinal consumption. But none of that
mattered: Terrified by the prospect of weakening the federal government in
other areas, and unable to conceive of a comprehensible way to distinguish
between commercial and non-commercial activities, a majority on the Court —
including Justice Breyer — upheld Wickard, and confirmed in the
process that, even in such cases as the “intrastate, noncommercial cultivation
and possession of cannabis for personal medical purposes as recommended by a
patient’s physician pursuant to valid California state law” is at stake, the
federal government is empowered to intervene on the grounds that the
superintendence of Raich’s behavior represents “an essential part of the larger
regulatory scheme.”
Dissenting, Justice Clarence Thomas wrote
that:
This
[decision] makes a mockery of Madison’s assurance to the people of New York
that the “powers delegated” to the Federal Government are “few and defined,”
while those of the States are “numerous and indefinite.”
There is no doubt that, if asked again,
Thomas would reiterate this view. And there is no doubt that, if he did so from
within a majority in a different case, the dissenters in Dobbs —
the same people who now complain that Dobbs does not contain a
broad curtailment of federal authority to regulate abortion post-Roe —
would immediately cry foul. Pushed to despair by the way the Court’s abortion
jurisprudence had corrupted so many of its other endeavors, Justice Scalia
often talked about the “abortion distortion” — and this is a perfect example of
it. Nothing that the Court has examined in the 80 years
since Wickard has been sufficient to convince its living
constitutionalists that their unchecked conception of the commerce clause is
“threatening,” but abortion hits the docket in a way they dislike, and, all of
a sudden, they are aflutter with the spirit of 1789.
How
grotesque.
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