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Echoes of 1860: Is "Life" a Question of State's Rights?
David Barton and Rick Green - 02/2008

ECHOES OF 1860: IS “LIFE“ A QUESTION OF STATE’S RIGHTS?

Much like the election of 1860, the 2008 presidential election generated a spirited debate over the correct relationship between the state and federal governments. The 1860 election debated the relationship of “states’ rights” to the issue of liberty; the 2008 election resurrected the issue of “states’ rights” but instead in the areas of life and family. Several of the 2008 presidential candidates declared themselves to be pro-life and pro-marriage but, citing federalism and “states’ rights,” they oppose either a Human Life or Marriage Amendment to the federal Constitution, claiming that such issues are to be decided by the state rather than the federal government. Yet a candidate’s position on such issues actually identifies their understanding of inalienable rights rather than their commitment to federalism.

In the original governing principles set forth in the Declaration (and then subsequently incorporated into the Constitution through Article VII), the right to life is one of three specifically identified inalienable rights; additional inalienable rights were subsequently enumerated in the Bill of Rights. The original documents – both the Declaration and the Constitution – make clear that the primary purpose of government, at all times and in all situations, is to protect those few inalienable rights.

Some candidates believed that the right to life is inalienable only to the degree that a specific state agrees – that if a state does not believe that the right to life is inalienable, then the federal government should not force the state to protect that right. Yet protection for the few specifically enumerated inalienable rights must always surpass what any particular state wishes – and this is the proper constitutional position on all inalienable rights, whether of life, private property, the right to keep and bear arms, the right of religious expression, etc. It is the duty of all government – including state governments – to protect inalienable rights. In fact, if the philosophy originally set forth in the Declaration of Independence and subsequently secured in the Constitution is rejected – the belief that there is a God, that He gives inalienable rights to man, and that the purpose of government is to protect those rights at all times (even when the states refuse to do so) – then there is no longer a unique American philosophy of government that will distinguish us from the rest of the world.

Understanding this, voices across the nation therefore asserted that what the state of Connecticut did in weakening property rights vis a vi the Kelo decision was intolerable because our founding documents specifically protected the inalienable right of private property through the Fifth Amendment; and they likewise asserted that what Washington, D. C. was doing with gun bans was wrong because it similarly violated the inalienable right to keep and bear arms secured to the people through the Second Amendment. Why, then, do they now believe that it is improper for the federal government to tell states that they must observe the inalienable right to life and traditional family set forth with equal force in the very same documents?

Some candidates even declared that because they are strict constructionists, they oppose amendments to the Constitution (a strict constructionist is one who supports interpreting the Constitution according to its original intent). Yet, since the Founders specifically included Article V in the Constitution to specify how the Constitution might be amended, then a strict constructionist must also support the part of the Constitution providing for its own amendment. In fact, refusing to consider a constitutional amendment does not reflect strict constructionism but rather a rejection of Article V of the Constitution.

The Founders wisely raised the bar so high as to make it is extremely difficult to pass any amendment, requiring a two-thirds approval of Congress and three-fourths approval of the states before any change could occur. Consequently, while there have been over 10,000 amendments to the Constitution proposed since 1789, only twenty-seven have been able to meet the constitutional standard. Of those twenty-seven, twelve were passed by the Founders themselves (the original “strict constructionists”) in only twenty years; in the subsequent two-hundred years, the nation has made just fifteen changes.

Federal constitutional amendments should be rare, but that does not mean they should be non-existent. States cannot be allowed to pick and choose which inalienable rights they will protect (although under the Constitution they are completely competent to determine virtually all other issues). The Constitution was written to preserve American culture and society, not to cause citizens to stand idly by while the culture is destroyed – especially when they have in their hands the means to preserve it through a constitutional amendment in the manner prescribed by the Constitution itself.

Some voices naively assert that simply eradicating abortion at the federal level and returning the issue to the states will correct the problem, but they are completely wrong. When the federal courts get out of the abortion issue and return it to the states, 20 states (based on both pro-life and pro-abortion estimates) will continue their current abortion practices, and those states include many with the largest population (e.g., California, New York, Illinois, etc.). Citizens from the other 30 states will therefore travel to one of those 20 states to get an abortion; so while the number of abortions will undoubtedly go down when the issue is returned to the states, it will come nowhere close to ending. Additionally, stopping abortion at the federal level will do nothing to correct the legal rulings generated in the state courts over the past 35 years as those state courts infused federal court positions into their own state case law. State courts will remain hostile to state attempts to restrict abortion because state case law is now as infused with the broad “health” exceptions, etc., as were the federal decisions.

A parallel legal analogy to today’s life and marriage protection concerns is seen in the 1860 slavery issue. At that time, even though the right to liberty was an inalienable right guaranteed in the founding documents, slavery was so deeply imbedded in the nation that the mere federal removal of itself from that issue vis a vi several federal statutes passed from 1861-1865 did little or nothing to change the slave culture in any of the states, either North or South – and those federal statutes certainly did nothing to change the bad court rulings that had occurred at the state level over the previous century.

Historically, the only manner in which bad case law can be completely eradicated from the law books (and thus completely terminate a long-standing harmful national practice that has permeated the states) is through a constitutional amendment – and a number of constitutional amendments have been passed to do just that (13th, 14th, 15th, 16th, etc.). In fact, had there been no constitutional amendments to secure the inalienable right to liberty that had been so egregiously violated by so many states, then there likely would still be slavery in America today as one generation, or family, or judicial system transmitted its errant beliefs to the next. So, too, with abortion.

The federal government should never have intruded itself into the abortion issue through the multiple Supreme Court decisions that opened the proverbial Pandora’s Box; however, the federal government did intrude itself. As a result, the abortion culture is now deeply implanted in America, and there are those who are as committed to that practice today as there were those who were committed to slavery a century-and-a-half ago. And abortion (like slavery before it) has become one of the nation’s biggest economic businesses; it therefore will not be eradicated from the nation by mere statutory action at the state level (or vice versa).

The Founding Fathers established federalism to preserve states’ rights, but they also placed the protection of inalienable rights far above the level of states’ rights. Candidates who desire to lead the nation should follow the Framers’ example and conform to the principles set forth in the Declaration of Independence and the Constitution, protecting life and marriage through the constitutional process those early leaders wisely provided.

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