Wednesday, August 3, 2011
Hadley Arkes on Gov. Perry on abortion and the Tenth Amendment
Following up on Robby's post, from a few days ago, I wanted to call attention to this short essay, by Hadley Arkes, over at The Catholic Thing, on the same topic (i.e., Gov. Perry's recent remarks about the Tenth Amendment and abortion).
For what it's worth, I agree entirely with Robby that Gov. Perry's claim that the Tenth Amendment makes it the case that the regulation of abortion is a matter for the states (alone) presumes that Congress's power to enforce the substantive guarantees of the Fourteenth Amendment does not include the power to regulate abortion. Whether or not Congress's enforcement power does include the power to regulate abortion is, in my (certainly revisable) view, a trickier question than Robby's post suggests, but let's put that aside.
Prof. Arkes' point, I think, is that even those of us who "believe" in the Tenth Amendment (Ed.: How could one not? It's like infant baptism . . . "I've seen it.") can also believe that (i) the Tenth Amendment itself does not answer the question, "does Congress have the power to do X?", and (ii) that Congress does, in fact, have more than a few at-present-not-fully-engaged powers to regulate, limit, and discourage abortion. And, it seems to me, he is clearly right about this.
UPDATE: A reader called my attention to the (not, to me, surprising) fact that Gov. Perry quickly made clear his support for a constitutional amendment regulating abortion. I should make clear that my post (above) was not intended to suggest any doubts on my part about whether or not Gov. Perry opposes abortion; that he is pro-life when it comes to abortion seemed before, as it does now, clear to me. I only meant to comment on the (to this Con Law geek) perennially interesting question of the Tenth Amendment's relationship to questions about the scope and content of Congress's enumerated powers.
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/08/hadley-arkes-on-gov-perry-on-abortion-and-the-tenth-amendment.html
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I don't quite get the argument that the 14th Amendment brings the question into the purview of the federal government. The due process clause refers to the government itself depriving a person of life, liberty or property; it does not implicate private action against life, liberty or property.
To read the clause that broadly would bring nearly ALL of criminal law into federal purview, as everything from petty larceny to murder deprives a person of life, liberty or property. The only offenses that would then remain the exclusive jurisdiction of states might be minor regulatory infractions (truancy, driving on a suspended license, etc.) and crimes of risk to life rather than outright deprivation (criminal negligence, child neglect, operating a vehicle while intoxicated).
Perhaps federal-abortion-ban advocates really do mean, by extension, to agitate for that kind of expansion of federal power. If not, then their position seems logically inconsistent. If so, then it contradicts centuries of understanding on the proper scope of the state police power.