Congress and Abortion




The thirtieth anniversary of Roe v. Wade leads law professor Glen Reynolds to raise the issue of whether Congress has any power to legislate on the subject. This opinion piece actually refers to the enumerated powers of Congress as set out in Article 1, Section 8, to argue that Congress, in its constitutional role, must leave the issue alone.

The actual issue of Roe v. Wade, however, is whether the Supreme Court was correct in ruling that the 14th amendment to the constitution extends to persons a recognition of a right which includes the right to an abortion in the face of state legislation to the contrary. The rights of sui juris persons were certainly given federal recognition in the language of the 14th amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Further, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." So clearly the issue is back before Congress, by way of the back-door of the enforcement clause of the 14th amendment. The amendment seems to freeze for all time, as a constitutional matter, the rights and immunities of free (sui juris) persons as they existed (or should have been recognized as existing) as of the time of enactment of the amendment (1868). Whatever the law on abortion was at that time becomes then a vital consideration, because whatever rights a citizen had relevant to abortion at that time was a right (either a privilege or an immunity) which, thereafter, a State could not abridge.

No wonder the Supreme Court does not want to touch the privilege and immunities clause.

Charley Reese

Buy your son a book on Robert E. Lee. Lee's birthday: January 19.

Lucky Duckies

Here is the free WSJ link to the editorial referenced below.

Demand-side Tax Cuts

The Wall Street Journal todays laments that millions of wage earners no longer pay any direct federal taxes and, consequently, supposedly have no stake in national tax and spending policy. Interesting take.

More importantly the current notion that we need a "fiscal stimulus" ignores the real reason for the recent boom-bust cycle: it certainly was not a lack of aggregate demand that led to the collapse in stock prices: The link points out: "Our problem is a trade cycle, not recurring slumps due to insufficient spending. The key problem that we face is in coordinating the supply of goods with the demand for them through time. Mises and Hayek correctly identified interest rates as being central to this problem. Of course, when government policies force wages up, unemployment ensues. The key point is that demand is irrelevant to unemployment and the trade cycle.

"Of course, heavy taxes can slow economic development. So, there are reasons to link taxes to economic performance, but there is a more important point that is being left out of this debate. Taxes are supposed to fund necessary functions of the government. By arguing over how to stimulate the economy, many overlook the fact that government spending consists largely of overt transfers that benefit narrow interests. This issue got more play during the time when campaign finance reform was in the news. By recognizing the irrelevance of Demand Side economics, we can refocus our attention to real issues."