Edmund Pettus Bridge in Selma. Yet States’ Rights continues to rear its ugly head wherever defiance of civil rights and equality for all citizens regardless of the color or shape of their skin thrive (even, occasionally, in the musings of the Supreme Court related to age, wage and hour laws, and disability—but never in the post-World War II era to race or gender).
The federal government most certainly was not “created by the states specifically to be an agent of the states” as the Resolution recites. Rather, the framers of the Constitution deliberately engineered an energetic national government to replace the loosely agglomerated knot of states governed by the enervating Articles of Confederation that had adopted the state-centric model advocated by the author of the Resolution. The Constitutional Convention would have been unnecessary had the Articles proven to be a sufficient governing instrument. See A. McLaughlin, A Constitutional History of the United States 137-47 (1936).
The Resolution places much stress on the Tenth Amendment, which has been ruled on in the Supreme Court only about a dozen times since the founding of the republic—in sharp contrast to the first, fourth, fifth, seventh, eighth, eleventh, and fourteenth amendments. The reasons for the dearth of case law are twofold.
First, the Tenth Amendment does nothing more than articulate the delineation of powers between the federal government and the states (it does not confer any affirmative powers on the states), and it grew out of the Framers’ desire to forge a compromise with fearful anti-Federalists who wanted the states to have an express brake on the powerful new federal government that was being created to replace the odd confection hobbled by the Articles of Confederation. Significantly, in debates about the ratification of the Constitution and its amendments, some anti-Federalists argued that the Tenth Amendment should limit federal authority to those powers “expressly” granted, which would have the effect of denying the federal government any implied powers, but the argument was rejected. As the Supreme Court has stated of the Tenth Amendment:
The amendment states but a truism that all is retained which has not been surrendered. There is nothing in its history or its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.
United States v. Darby, 312 U.S. 100, 124 (1941). See also United States v. Sprague, 282 U.S. 716, 733 (Tenth Amendment “added nothing to the instrument as originally ratified”).
Second, the Tenth Amendment has something of a reputation as a refuge of scoundrels. From time to time state and local governments have tried to justify discriminatory laws—especially in the areas of race, labor, and environmental regulation—with resort to the Tenth Amendment. Thus, in The Civil Rights Cases, 109 U.S. 3 (1883), Missouri among other states challenged Congress’ authority to pass the Civil Rights Act of 1875, which made racial and religious discrimination in public accommodations illegal. With only Justice Harlan dissenting, the Court held that Congress had no power under the Thirteenth and Fourteenth amendments to pass such a law and that it had transgressed the powers reserved to the states through the Tenth Amendment. Thirteen years later, again with only Justice Harlan dissenting in some of the most inspiring words in all of constitutional law, the Supreme Court affirmed the State of Louisiana’s argument that the Tenth Amendment allowed it to racially segregate public transportation, giving rise to the notorious “separate but equal” doctrine that legitimated all forms of social and school segregation until Brown v. Board was decided in 1954. A few scattered cases bear witness to the Lochner-era distaste for the New Deal programs of Franklin Roosevelt (such as child labor prohibitions and some tax and commerce regulations), but these cases, too, were later overturned by a more enlightened Court.
Besides these shocking holdings giving judicial imprimatur to Victorian-era racial prejudice and abhorrent attitudes toward children, however, the modern Supreme Court almost never invalidates a federal law as an infringement on the states’ Tenth Amendment reserved powers. In 1992, for only the second time in almost 60 years, the Court invalidated a radioactive-waste law Congress had passed as a violation of the Tenth Amendment because it forced the states to enforce and actually administer federal regulations, and in 1997, it struck the federal Brady Handgun Violence Prevention Act for the same reasons. See New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997). The rarity of such holdings is telling.
There is yet another reason that H.R. 212’s reliance on the Tenth Amendment as justification for defiance of federal law would be misplaced. Even if there were any merit to the Tenth Amendment view advanced by H.R. 212, Congress would still have the power to pass FOCA by virtue of its powers under the Constitution’s “necessary and proper” clause. That the necessary and proper clause can be a complete rebuttal to extravagant claims for the Tenth Amendment’s scope is an insight that may be traced back to 1819, in one of the first Justice Marshall’s most legendary opinions, McCulloch v. Maryland, 17 U.S. (Wheat.) 316, 372 (1819).
Besides its erroneous understanding and misapplication of the Tenth Amendment, the Resolution demonstrates other defects of understanding. There is no sense in which, as the Resolution recites, “the states are demonstrably treated as agents of the federal government.” In fact, the radioactive-waste and handgun cases cited above—1990s cases—demonstrate that Congress may not commandeer the states’ employees to enforce and administer federally mandated programs such as criminal records checks for purposes of federal gun-control laws. Although it is certainly true that the federal government regulates citizens to a far greater extent than in the mid-1800s, it is the states in which the predominant police powers are reposed. The states, not the federal government, largely regulate crime, marriage and the family, property, and schooling—the areas most intimately connected to the citizens.
Likewise, H.R. 212’s proposition that there is a hierarchy of rights in the Constitution that disfavors implied fundamental rights is simply civically illiterate. The United States Supreme Court has held the implied right of reproductive privacy of the Fourteenth Amendment to be broad enough to encompass a woman’s right to choose an abortion, and the Court has expressly held this right to be “fundamental”—as fundamental as the right to direct the course of a child’s general upbringing, for example. See Roe v. Wade, 410 U.S. 113 (1973). The fact that a particular constitutional right is not called out by name in the text of the Constitution does not render that right nonexistent. The belief that it does flies in the face of our earliest constitutional cases and any rational understanding of American constitutional history.
The Resolution contains several misstatements and objectionable terms and provisions, as well. Contrary to the false representations about FOCA contained in H.R. 212, FOCA would not:
1. Abrogate informed consent to an abortion. Informed consent consistent with standard medical practice and the best judgment of the physician would continue to be constitutionally permissible—and desirable. Regulations that substitute the medical judgment of the Missouri General Assembly for standard-practice informed consent should never have been made law anyway, and FOCA would be in play only as to regulations that have no medical or other sufficient justification.
2. Abrogate Missouri’s statute with regard to minors who have abortions. This is wholly untrue, as the Missouri statute as written accords with the leading Supreme Court cases allowing for judicial-bypass procedures. FOCA would obviously not strike a law that meets the requirements the Supreme Court has set consistently with Roe.
3. Abrogate laws requiring a determination of fetal viability prior to an abortion. This is nonsense. FOCA is nothing more than a codification of Roe and its progeny on this issue. Roe and its progeny draw a hard line on states’ explicit ability to outlaw all abortions when the fetus is viable except where the life or health of the woman is imperiled.
4. In addition, express repeal of some of the other Missouri laws that it is claimed would be invalidated would likely be required, probably with regard to public funding and conscience refusals, and other laws would have to be challenged on a case-by-case basis. This topic is addressed in NARAL Pro-Choice Missouri’s fact sheet, “What Would the Federal Freedom of Choice Act (FOCA) Do?” in footnote 1. The Hyde Amendment, forbidding federal funding of abortion, and the Church Amendment, allowing physicians to refuse to perform nonemergency abortions, are current federal law and have not been expressly repealed by Congress.
FOCA also would not, of course, require “abortion on demand.” In codifying Roe v. Wade, it would simply respect the balance struck between a woman’s fundamental right to reproductive choice and the state’s legitimate interest in nascent life that evolves in importance as viability advances. If anything is “a radical political ideology,” it is that of the anti-constitutional manifesto that is embodied in the terms, color language, and Calhounianism of H.R. 212. It should be resoundingly rejected by any legislator who purports to cherish and serve the Constitution, to care for the rights and dignity of Missouri’s women, and to respect the dignitary interest of Missouri in refraining from passing legislation (even hortatory legislation) that shows an appalling ignorance of 222 years of constitutional history.
