by Ed Mechmann
Once upon a time, some very smart men proposed a political system called “federalism”. The basic idea was that there would be multiple layers of government, with different areas of responsibility. Primary legislative authority would be exercised by state and local governments, which are closest to the particular problems of their areas, and theoretically more responsive to their constituents. For matters that crossed state boundaries or that affected the nation as a whole – like the flow of goods between states – the federal government would be given authority to deal with those. And basic human freedoms – natural rights – would be preserved beyond government action completely.
It sounded like a good idea, and it was put into writing in a document called the United States Constitution. But many people were still concerned that the Constitution gave too much power to the federal government, and wanted to make sure that “federalism” would work. So they added a set of amendments – they called it the Bill of Rights – that listed some of the basic rights that couldn’t be infringed by the federal government and stated specifically that some rights and powers were retained by the people and the states.
That was long, long ago. So much has changed that the notion of “federalism” has become a relic of days gone by. Thanks to a series of Supreme Court decisions that began in the New Deal era, the federal government has been given virtually unlimited power to regulate just about every aspect of our lives.
This is frequently done under the transparently phony pretext that they are acting under the apparently infinitely expandable Commerce Clause of the Constitution, which gives Congress authority to regulate matters “commerce among the several states”. The Supreme Court, never shy about re-writing the Constitution, has interpreted that to mean that anything “in or affecting interstate commerce”, no matter how indirect, tenuous or trivial, can be the subject of federal regulation. If you want to see how that works, Google the case ” Wickard v. Filburn“.
Another way that the federal government reaches its hand into matters that would otherwise be considered local is by attaching conditions to federal spending or grants. While there are some limits to this – courts will not allow the feds to “coerce” local governments, whatever that might mean – the result is that the federal government can now affect all sorts of things that once would have been the exclusive province of state or local governments.
Why am I so exercised about this Eighteenth Century theory of law and government? Why don’t I just get with the times?
A bill has been introduced in Congress, called the “Dignity for Aborted Children Act”. It would have a direct impact on the way that abortion clinics and doctors go about their grisly business. It would require that the fetal remains be disposed in the same way as any other human remains, and not treated as medical waste or as macabre trophies by sick abortionists.
This is a noble goal, one that we have been trying to bring about by legislation here in New York for many years. It’s been endorsed by many pro-life groups and by the U.S. Bishops.
So why would I object? Because regulating abortion isn’t the business of the federal government. The performance of abortions has nothing whatsoever to do with “commerce among the states” and cannot seriously be said to be an activity “in or affecting interstate commerce” in any substantial way. Regulation of abortion is a state or local matter.
So what? If the federal government has been given that power by the Supreme Court, why not use it for a good purpose?
Because the same power that can be used for a good purpose can just as easily be abused for an evil one.
Democratic presidential candidates have been parrotting the talking points of the abortion industry and calling for “codifying Roe v. Wade”. What they’re talking about is passing a federal law that is just as extreme as our hideous New York State Reproductive Health Act. That radical law removes all regulations of abortion in our state, ensures that it can be done through all nine months of pregnancy for any reason, and even allows non-doctors to do it.
Do we really want to give a Democratic Congress and a Democratic President the authority to sweep aside every single abortion regulation in the United States and enact the abortionists’ dream law, under the pretext of regulating “commerce among the several states”?
The idea of federalism was incorporated into our Constitution as a brake on the use of political power. The Founders believed that power should be exercised primarily at a local level, with checks and balances to make sure that it is not abused. Federalism protects the ability of states and localities to prohibit or restrict abortion, and prevents the federal government from interfering. We should stay far away from anything that would undermine that principle.
Remember Sauron’s Ring of Power? Do we really want to give that to pro-abortion advocates and their allied politicians?