The Perfect Constitutional Question for Republican Candidates

"Would you as President propose to Congress appropriate legislation pursuant to the Fourteenth Amendment to protect human life in all stages and conditions?"

It was the perfect constitutional question for Republican presidential candidates at the American Principles Project debate.  In a single sentence it put on the table three central concerns of Republican primary voters: (1) the protection of unborn life; (2) federalism-the division of powers between the national government and the states; and (3) the scope and limits of the power of judicial review.

Princeton Professor and American Principles Project co-founder Robert George put the question to five of the six leading contenders for the Republican presidential nomination on September 5th at the APP debate in Columbia, South Carolina.  (Texas Governor Rick Perry withdrew at the last minute due to the raging fires around Austin.)   A majority of them - Herman Cain, Michele Bachmann, Newt Gingrich - said, yes, they would propose pro-life legislation to Congress.

Washington Post blogger Jennifer Rubin was appalled.  George's question set the candidates off in pursuit of a "lark," she said.  Evidently, she accepts the idea of "judicial supremacy" in constitutional interpretation.  If the Supreme Court says that the Constitution requires this, that, or the other thing (perhaps having discovered it lurking in "penumbras formed by emanations") then, damn it, that's what the Constitution requires, and short of a constitutional amendment or the Court reversing itself there is, in all instances, nothing anyone can do.

Well, that's one view.  But it is certainly not the view of the American founders or of Lincoln.  And in the American Principles Project debate, focused on "our nation's founding principles," that would seem to matter decisively.

As to the major premise of the position George proposed to the candidates, there is scarcely room for doubt:  the text of the Fourteenth Amendment itself makes clear that Congress (and not the Court, by the way) was meant to be the primary guarantor of the rights it secures.  Section five of the Amendment expressly empowers Congress (no mention of the judges) to enforce the rights of due process and equal protection, among other guarantees, enshrined in its first Section.  As to the minor premise, all five of the candidates were already publicly committed to the position that unborn children possess, as George put it, "inherent and equal dignity."  Put the two premises together, and there is no resisting the conclusion that if a state won't protect the unborn, it falls to the national government to do so.

Leaving only this question:  What about Roe?  Must the President and the Congress treat as binding on them any and every ruling of the Supreme Court, even those that cannot but be classified as anti-constitutional abuses of judicial power and usurpations of the constitutional authority of other branches of government?

Here Professor George called Abraham Lincoln as his witness.  Faced with the Supreme Court's usurpation in Dred Scott v. Sandford, denying Congress the power to restrict slavery even in the federal territories, and depriving even free Blacks the rights of citizenship, Lincoln maintained that the President and Congress were in no way constitutionally bound to treat the principles of the decision (Congress has no power with regard to slavery; Blacks have no rights) as controlling their actions in the execution of their offices.  They had sworn oaths to uphold and protect the Constitution-not the rulings of Supreme Court justices.  Those rulings are, Lincoln said, entitled to high respect and consideration, and they bind the parties in the particular case; but where court rulings themselves violate the Constitution, they need not be treated as binding on the other branches of government.

Lincoln's reasoning made it clear that he saw judicial usurpation as presenting the very same threat as secession:  imperiling republican government, i.e., government of, by, and for the people.  Professor George quoted his First Inaugural Address:

If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Nothing in the Great Emancipator's words was considered radical or odd by his hearers.  His understanding was precisely the understanding of the Founders.  Thomas Jefferson, for example, held the same position and was even more outspoken against the dangers to the Constitution of an overreaching and unchecked judiciary.

The judicial supremacist view that Jennifer Rubin treats as if it were constitutional orthodoxy was not even proclaimed by Supreme Court justices themselves until the second half of the Twentieth Century.  (Newt Gingrich, who holds a Ph.D. in history, astutely pointed this out at the APP debate.)  Even today some justices dissent from it, recognizing its inconsistency with the original understanding of the Constitution.

Unlike Bachmann, Cain, and Gingrich, Mitt Romney responded to George's question by saying, no, he would avoid a confrontation with the Supreme Court and, instead, labor to reverse Roe by appointing justices who recognize the decision as a constitutional atrocity and would vote to overturn it and return the issue of abortion to the states.  It is worth noting, however, that even Romney was careful to avoid endorsing judicial supremacy.  He, too, seemed to be aware that embracing such a view could hardly be squared with respect for America's founding principles.  Romney's argument was that a direct legislative attack on Roe would, in current circumstances, be inadvisable as a matter of prudence; he did not claim that it would be unconstitutional.

At the American Principles Project debate, three major candidates endorsed federal action to protect the unborn, even if that meant a confrontation with the judiciary.  And one major candidate who dissented, objected on grounds of prudence, not principle, and proposed what he hoped would be a way of undoing Roe v. Wade without precipitating a "constitutional crisis."

Gerard V. Bradley is professor of law at Notre Dame Law School.

"Would you as President propose to Congress appropriate legislation pursuant to the Fourteenth Amendment to protect human life in all stages and conditions?"

It was the perfect constitutional question for Republican presidential candidates at the American Principles Project debate.  In a single sentence it put on the table three central concerns of Republican primary voters: (1) the protection of unborn life; (2) federalism-the division of powers between the national government and the states; and (3) the scope and limits of the power of judicial review.

Princeton Professor and American Principles Project co-founder Robert George put the question to five of the six leading contenders for the Republican presidential nomination on September 5th at the APP debate in Columbia, South Carolina.  (Texas Governor Rick Perry withdrew at the last minute due to the raging fires around Austin.)   A majority of them - Herman Cain, Michele Bachmann, Newt Gingrich - said, yes, they would propose pro-life legislation to Congress.

Washington Post blogger Jennifer Rubin was appalled.  George's question set the candidates off in pursuit of a "lark," she said.  Evidently, she accepts the idea of "judicial supremacy" in constitutional interpretation.  If the Supreme Court says that the Constitution requires this, that, or the other thing (perhaps having discovered it lurking in "penumbras formed by emanations") then, damn it, that's what the Constitution requires, and short of a constitutional amendment or the Court reversing itself there is, in all instances, nothing anyone can do.

Well, that's one view.  But it is certainly not the view of the American founders or of Lincoln.  And in the American Principles Project debate, focused on "our nation's founding principles," that would seem to matter decisively.

As to the major premise of the position George proposed to the candidates, there is scarcely room for doubt:  the text of the Fourteenth Amendment itself makes clear that Congress (and not the Court, by the way) was meant to be the primary guarantor of the rights it secures.  Section five of the Amendment expressly empowers Congress (no mention of the judges) to enforce the rights of due process and equal protection, among other guarantees, enshrined in its first Section.  As to the minor premise, all five of the candidates were already publicly committed to the position that unborn children possess, as George put it, "inherent and equal dignity."  Put the two premises together, and there is no resisting the conclusion that if a state won't protect the unborn, it falls to the national government to do so.

Leaving only this question:  What about Roe?  Must the President and the Congress treat as binding on them any and every ruling of the Supreme Court, even those that cannot but be classified as anti-constitutional abuses of judicial power and usurpations of the constitutional authority of other branches of government?

Here Professor George called Abraham Lincoln as his witness.  Faced with the Supreme Court's usurpation in Dred Scott v. Sandford, denying Congress the power to restrict slavery even in the federal territories, and depriving even free Blacks the rights of citizenship, Lincoln maintained that the President and Congress were in no way constitutionally bound to treat the principles of the decision (Congress has no power with regard to slavery; Blacks have no rights) as controlling their actions in the execution of their offices.  They had sworn oaths to uphold and protect the Constitution-not the rulings of Supreme Court justices.  Those rulings are, Lincoln said, entitled to high respect and consideration, and they bind the parties in the particular case; but where court rulings themselves violate the Constitution, they need not be treated as binding on the other branches of government.

Lincoln's reasoning made it clear that he saw judicial usurpation as presenting the very same threat as secession:  imperiling republican government, i.e., government of, by, and for the people.  Professor George quoted his First Inaugural Address:

If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Nothing in the Great Emancipator's words was considered radical or odd by his hearers.  His understanding was precisely the understanding of the Founders.  Thomas Jefferson, for example, held the same position and was even more outspoken against the dangers to the Constitution of an overreaching and unchecked judiciary.

The judicial supremacist view that Jennifer Rubin treats as if it were constitutional orthodoxy was not even proclaimed by Supreme Court justices themselves until the second half of the Twentieth Century.  (Newt Gingrich, who holds a Ph.D. in history, astutely pointed this out at the APP debate.)  Even today some justices dissent from it, recognizing its inconsistency with the original understanding of the Constitution.

Unlike Bachmann, Cain, and Gingrich, Mitt Romney responded to George's question by saying, no, he would avoid a confrontation with the Supreme Court and, instead, labor to reverse Roe by appointing justices who recognize the decision as a constitutional atrocity and would vote to overturn it and return the issue of abortion to the states.  It is worth noting, however, that even Romney was careful to avoid endorsing judicial supremacy.  He, too, seemed to be aware that embracing such a view could hardly be squared with respect for America's founding principles.  Romney's argument was that a direct legislative attack on Roe would, in current circumstances, be inadvisable as a matter of prudence; he did not claim that it would be unconstitutional.

At the American Principles Project debate, three major candidates endorsed federal action to protect the unborn, even if that meant a confrontation with the judiciary.  And one major candidate who dissented, objected on grounds of prudence, not principle, and proposed what he hoped would be a way of undoing Roe v. Wade without precipitating a "constitutional crisis."

Gerard V. Bradley is professor of law at Notre Dame Law School.