Posted By James Brown
Hi Russ:Originally Posted by Russ Carroll
Well, to make a somewhat extreme and absurd example, some southern churches in the 1800's taught that black people did not have a soul and were therefore really not humans. If that's true, you logically couldn't be guilty of murder if you killed a slave. We didn't let Alabama codify that thinking into law, regardless of the large popular support there was for that thinking in the south.
That is not an absurd example, it is a great starting point. If Alabama had codified that sort of abhorrent thinking after 1866, the statute would have been stricken down by the Supreme Court under the Due Process and Equal Protection clauses of the 14th amendment. It goes without saying, but such a law would have denied a class of people (Blacks) the equal protection of laws generally prohibiting murder and assault without due process.
What class is being denied life, liberty, or the equal protection of a law when a state passes an abortion regulation? The heart of the 14th Amendment is that its protections are engaged when state laws are applied unequally to a class of people. Women could be the class, but where is the equal protection or due process violation? This question is extremely difficult in the abortion context and was finessed with the right of privacy found in the penumbra of the 14th by Roe v. Wade.
So, the Constitution is a backstop against any state statute that is unconstitutional. Subjects that are not in the constitution are reserved to the states. So we have come full circle.
I've been thinking about federalism a lot in this context. It is clear that since the new deal, the federal government has taken authority over a lot of things that are not in the Constitution. Education, transportation, environmental regulation, labor, and so on. Usually, the authority for an agency regulation or federal legislation in these formerly "state law" areas of law is the interstate commerce clause of the Constitution. This makes sense to me. In the 1780s most commerce was not interstate. In 2022, virtually all commerce is interstate. I think that Congress can theoretically pass an abortion statute and cause it to be Constitutionally binding on all 50 states using one technique or another. Murkowski and Collins have a bill pending now. The Ds have another. The big ask is for the R's and D's to pass something. I do not think they can for many practical and many extremely cynical reasons. Until they do, it looks like this is left to the states as a practical matter, until Congress can act or the Court is reconstructed over time.