By Dave Kopel & Glenn Reynolds
August 14, 1996
If you ask Colorado Republicans what they think about the federal government, most will tell you that it should be smaller. In particular, most will tell you that Congress should stop passing new laws on subjects for which Congress has no Constitutional authority. Unfortunately, this message hasn't gotten through to Colorado's Congressional delegation.
Exhibit One is the "Partial-Birth Abortion Ban Act," which has been passed by Congress, vetoed by the President, and is ready for a showdown on a Congressional override of the veto as soon as Congress reconvenes in September. If there is anything clear about limited federal powers, it is that they don't extend to banning one type of abortion, or any other medical procedure. Of the Republicans in the Colorado Congressional delegation, only Senator Campbell voted against that ban.
The Constitution does not give Congress the authority to legislate on any topic Congress wants. Instead, Congress is given powers only on an enumerated list of subjects, such as bankruptcy law, federal property, taxes, the military, and "commerce among the several states." Nowhere on this list, of course, is authority to regulate medicine or abortion.
For most of America's history, Congressional power over commerce among the several states was interpreted to mean exactly that: Congress can regulate buying and selling things when the transaction crosses state boundaries. But starting in this century, especially in the 1930s, the Supreme Court stopped enforcing any limits of the interstate commerce power. Congress was allowed to use the interstate commerce power to regulate anything at all, as long as the anything had some tenuous connection to the national economy.
Thus Representative Charles Canady (R-Fla.), the sponsor of the Partial-Birth Abortion Ban Act, asserts that Congressional power over interstate commerce gives Congress the authority to outlaw a particular medical procedure. Similarly, when President Clinton was pushing his health care bill, it was asserted that Congress could make it a federal felony for a patient to pay a doctor directly for medical services, instead of having the payment made by a health insurance company.
Ten years ago, such wild stretches of the commerce power would have been upheld by the Supreme Court. After all, an abortion provider or any other doctor probably uses some equipment which was manufactured by an out-of-state company, and such slender connections were generally good enough.
But in 1995, the Supreme Court threw out the federal "Gun-Free School Zones Law," which made it illegal to possess a gun (with certain exceptions), within a thousand feet of a school. The Court, in the case of United States v. Lopez, said that simple gun possession didn't have enough of a genuine connection to the national economy to be regulated as "interstate commerce."
Most Congressional Republicans applauded the Lopez decision as wisely protecting the principle of federalism. They pointed out that states can, and do, set up "Gun Free School Zones," and that such legislation is properly handled by states, rather than the national government.
Too bad these same Republicans are now ignoring that principle when pushing the Partial Birth Abortion Ban Act. This Act has nothing to do with the sale of products among different states. To the extent that particular medical procedures should be outlawed, it is up to state governments to do so.
Unfortunately, the Partial Birth Abortion Ban Act is not the only issue where Congressional Republicans--with plenty of help from Democrats--are jettisoning Constitutional principles in favor of political expediency. Denver Congresswoman Pat Schroeder is pushing a federal bill to prohibit clitoridectomies, which are sometimes performed by African immigrants on baby girls.
Clitoridectomies--like late-term abortions for purely psychological reasons--are wrong. But they are not within the scope of the enumerated, limited powers of the federal government.
Trashing federalism is not just a medical problem. Earlier in this Congress, House Republicans passed "tort reform" legislation which would drastically change legal procedures in state courts. The new "welfare reform" law imposes federal rules on how states issue birth certificates, marriage licenses, drivers licenses, and other identity documents. And this spring's "terrorism" law just turned old-fashioned state offenses into newfangled federal crimes, with little justification other than politics.
The Framers deliberately created a small federal government that would do a few important things (defend the country, protect interstate commerce, etc.) and do them well. The huge federal government that the politicians have created by abandoning the Framers' plans tries to do many things, and does them badly.
The result has been a government increasingly dangerous to individual liberty even as it seems increasingly incompetent to deal with important national problems. The bipartisan betrayal of limited government will only make the problem worse.