On abortion, House Dems reveal massive constitutional ignorance
It’s been enjoyable watching the Democrats’ frantic response to the Supreme Court’s abortion decision. That decision did not ban abortion in America, instead returning it to the states where it belongs, but the Democrats’ have decided abortion is indeed dead and the past couple of days have seen two loony, unconstitutional plans for resuscitating it.
The first plan is to pass federal laws legalizing abortion across the nation. Jeff Charles sums up the two Democrat bills this way: “These two bills, if passed by the Senate, would essentially codify Roe into law. It is their second attempt at passing laws that would promote abortion and would even go beyond what Roe allowed.”
Two bills ought to be enough, right? Oh, no. The young leftist guns in the House have an even better idea—pass a law saying that the Supreme Court cannot rule on abortion cases:
A group of House progressives led by Reps. Alexandria Ocasio-Cortez (D-N.Y.) and Mondaire Jones (D-N.Y.) called on House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Charles Schumer (D-N.Y.) to strip the Supreme Court of its abortion jurisdiction.
“We write to urge your support for restricting the Supreme Court’s appellate jurisdiction in the areas of abortion, marriage equality, non-procreative intimacy, and contraception,” the lawmakers wrote in a letter to the congressional leaders.
“In doing so, we can ensure that, as Congress takes legislative action to codify each of these fundamental rights, a radical, restless, and newly constituted majority on the Court cannot further undermine the protections we would enact.”
Shockingly, today’s Democrat members of the House of Representatives don’t understand the constitutional system in which they serve. I guess it makes sense, though, because you achieve leftism through ignorance, not knowledge. Here’s a little knowledge.
Image by Andrea Widburg
Art I to the Constitution holds that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
The Democrats believe this language means that, if they can pass a bill, they’ve got the power. This ignores the words “Powers herein granted.” When creating a federal government for a conglomeration of thirteen highly independent states, all jealous of their rights and powers, the Founders did anything but grant Congress unlimited power.
Art I, Sec. 8 defines a very short list of powers granted to Congress, all of them essentially procedural (government functioning), rather than substantive (the minutiae of Americans’ lives), to ensure a functioning national government. The states can’t mess with those powers.
But just to drive home the point that the federal government has a short leash, the Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Art. III federal court system has an equally narrow mandate, given those jealous individual states. Federal courts were meant to preside over purely federal procedural affairs or to serve as a neutral forum in matters between the individual states, between citizens of the different states, or between the states and the federal government. It was Chief Justice John Marshall who bestowed on the Supreme Court the power to determine—“yes” or “no”—whether a law or action falls within the Constitution.
Justice Marshall probably gets a pass on that arrogation of an unstated power because someone needs to make that decision and the Constitution doesn’t assign explicit responsibility to any branch. The real Supreme Court sin was when it created for itself the imaginary notion of “substantive due process,” through which it acquired the power to legislate, creating substantive rights out of whole cloth. With the Dobbs case, today’s Supreme Court dealt a death blow to substantive due process.
Seeing neutered the Supreme Court that has given them so much, House Dems are demanding that, with the Court bowing out, Congress legislate abortion. They don’t understand that Dobbs stripped abortion power from all parts of the federal government. Thus, governing abortion is not one of those Powers herein granted. Instead, abortion is a “power not delegated to the United States by the Constitution.” Not only is it barred to the federal court system, but it’s also barred to Congress.
As for legislation cutting the Court off from abortion cases, that’s a non-starter too. Nothing in Art. I gives Congress the power to carve out exceptions to issues the Court may hear if those limitations aren’t already in the Constitution. Arguably, Congress could try legislation stating that Chief Justice John Marshall got it wrong when he said the Supreme Court was the correct institution for determining a statute’s constitutionality. However, that would give Congress way too much power and the American people won’t like that.
You’d think that congresspeople would know this kind of thing. It’s their job, after all.
UPDATE: A reader very politely reminded me that I forgot Art. III, Section 2, Clause 2, under which "the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions...as the Congress shall make." I've always read that to mean procedural exceptions but it's absolutely true that it can also be read to give Congress the power to remove whole areas of law from the Supreme Court's purview.