I know, dumb question. But bear with me. Jennifer Rubin for the Washington Post highlights an odd question kicked to several of the current Republican contenders: do they think Congress could (and should) pass a law under the Fourteenth Amendment’s “enforcement clause,” overruling Roe v. Wade?
Let’s state the painfully obvious — this is a non-starter. True, the Fourteenth Amendment’s Section 5 permits Congress to “enforce” the Amendment with “appropriate legislation,” theoretically permitting Congress to extend the Amendment’s protection of “all persons born or naturalized in the United States” to, ahem, the unborn. But — setting aside the huge internal consistency problem, for these candidates who purport to believe in originalism — it’s been settled for some time that the Enforcement Clause permits Congress to remedy only extant violations of the Fourteenth Amendment. Congress cannot use it to classify new wrongs (see, e.g., Boerne v. Flores). This means Congress would have to overrule Roe before relying on it to, well, overrule Roe. That’s not a thing. Kudos to the Republican candidates, though, for adopting a position that might actually make a second-year law student think for about five seconds before laughing. Honestly, it’s an improvement over nullification.
Anyways, Ramesh Ponnuru, with his absence of a law degree, thinks I’m wrong, and uses this as a jumping-off point to argue that Marbury v. Madison means something less than it says. To wit,
We have certainly not taken the view for 200 years that the Court’s interpretation of the Constitution is binding on the other branches.
Oh? Actually, we have. The Constitution is what the Supreme Court says it is. Full stop. The other branches have an “independent constitutional duty,” but only insofar as they may over-protect rights the Court under-protects. They may not countermand the Court, because, as Chief Justice Marshall put it,
It is emphatically the province and duty of the judicial department to say what the law is.
I grant that this leads to some uncomfortable truths. For example, the Dred Scott decision remains immoral, a blight on this nation’s history, and it was legally wrong when decided (as so many Supreme Court decisions are). But it was decided through a legitimate process, and was therefore The Law until overruled or superseded. Similarly, Lincoln was legally wrong when he ignored Chief Justice Taney to unilaterally suspend the Great Writ along the future site of the Baltimore-D.C. Acela corridor. That his decision probably saved the Union is no matter; history allows for, and regularly vindicates, such creative lawbreaking. The rule of law does not.
What Ponnuru is trying to cultivate is some Platonic notion of the Constitution — where the Supreme Court’s decisions are the product of imperfect mediation between The Law and humanity, resulting in mere shadows on the cave wall, often at odds with capital-t Truth. Sure. I grant this much. But this is a general problem in human society, incapable of relieving us of the duty of following the law as it is given by properly constituted authorities, failing some “constitutional moment,” or the breakdown of the social contract in justified revolution. Conservatives who seek to reverse Roe may attempt to change the system by following the traditional processes of litigation, lobbying, and cultural dialogue; or they may lay claim to some absolute Truth, revolt, and throw out the system to pursue it. What they may not do is ignore the rules of the game only as applied to isolated pet issues.
Civil society is not a broken-down Romulan Warbird: it does not permit little bubbles of alternate reality where the rule of law, for whatever reason, does not apply. Any suggestion to the contrary needs to be identified for what it is: subversive. By giving their blessing to this little Roe-runaround, the Republican field (absent Romney and Paul) have effectively told you that they are either (1) ignorant of basic civics, (2) panderers, or that they (3) believe their pet causes are somehow above the law. Hardly encouraging.