The Question of Federalism and Abortion

Are These Truths Self-Evident?

On Friday, I brought you the story of Herman Cain’s confusing stance on abortion.  Some of you disagreed with my position on this, citing the notion of federalism as the “out.”  I’m sorry to say that I can’t help but disagree with anybody who tries to evade this issue by pointing to federalism as their escape mechanism.  Federalism is certainly an important principle in our constitutional republic that has been denigrated and dismissed too easily by statists, but in this instance, it’s a concept out of place by virtue of the question at hand.  By the application of federalism that some of you have advanced, I’m confused as to how you see any federal role anywhere in safeguarding any liberty of any American at any time under any circumstances.  Frankly, it’s an absurd claim, and it’s time we debunk it right here, and right now.

Our founding document, the Declaration of Independence, sets forth the right to life, liberty, and the pursuit of happiness of its citizens as the great pursuit and ultimate object of our government.  Our framers were so concerned that they decided to enshrine certain rights within the Constitution in specific language in what was ultimately adopted as our Bill of Rights, the first ten amendments to our federal constitution.  I would like it very much if one of the advocates of federalism would explain to me how it is that our federal government protects the freedom of speech, the press, religion, the right to keep and bear arms, and the right to individual due process if the rights in question are subjected to any level of government outside the federal sphere.  Explain to me why it is that we have need of a federal murder statute, if murder is a crime to be handled by the states.  Explain why we have any protections of any sort, including voters’ rights, that supersede local or state laws in many, many instances.

The argument of federalism really has no place in this argument if you believe there is a right to life, and that life begins at conception.  If there is a right to life, that life gets all the same protections of law from the federal all the way down to the individual, otherwise, why bother with the concept of rights at the federal level at all?  Do not suggest to me that you do not want rights enforced at the local level of government by federal observance of these fundamental rights, else how do you support the rulings of the court that have held that the gun laws of Chicago are too restrictive of the right to keep and bear arms, and are a de facto prohibition.  In this case, most of you cry out for the protection of your rights by the federal establishment.  How do you now suggest that federal authority has no effective reach, in the case of abortion?  This is a preposterous dichotomy that does not withstand even momentary consideration.

There were a few who rightly suggested that this is about when “person-hood” begins, and this is the more effective argument.  If one becomes a “person” under the law only at birth, then no form of abortion can be restricted on any grounds.  To effect this discontinuity, however, you would have to define the legal standard of “person-hood” as beginning at conception.  My point to you is that whether you agree with abortion or not, it’s perfectly useless for the debate to focus on any other object but this one.  If abortion is to be illegal, it must be specified that rights commence not at birth, but at conception.  To obfuscate the matter by putting it off to an issue of federalism has already failed miserably: How many state laws restricting abortion have been overturned by the federal judiciary on the basis that a woman’s right to abort falls under the federal protection of some elusive and illusory right to privacy not mentioned in the constitution?

If the question of abortion is to be attacked in a sincere way, it must be confronted on the issue of when rights commence.  Our constitution is silent on the matter, however, our Declaration of Independence speaks to the matter:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Now, armed with that piece, again consider this one:

“…the separate and equal station to which the Laws of Nature and of Nature’s God entitle them…”

Once more, if the laws of nature are the point of reference, what does nature tell us about when life commences? A human being becomes an individual at conception, with his own unique genetic code, and from that moment forth, it’s dictated by nature.

You can argue about this indefinitely, but my point to you is that our founders understood that nature dictates the rights of all mankind, and that government exists only to guarantee those rights. They held that God was the author of nature, and in that sense, all rights are therefore God-given, but in any case, as a matter of pure logic, the rights of individuals must be an a priori prerequisite to existence as a person.  If that is the case, the only argument to have is this one.  What I’m saying to you is that this business about Federalism with respect to individual rights negates the entire purpose of the federal government.  If the federal government has no place in the matter of the guarantee of individual rights, then there can be no legitimate purpose to the federal government in any sense.  Again, referencing the Declaration of Independence:

“That to secure these rights, Governments are instituted among Men…”

In this single line is the sole legitimate purpose of our federal government, and indeed any government.  Those of you who would suppose yourselves conservative or libertarian ought to know this well.  To then argue that the abortion debate can be dispensed with by simply passing it off to a lower level of government under the aegis of federalism is to ignore what is the entire purpose of any government, and I simply won’t hear of it.  Not on this site.

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12 Responses to The Question of Federalism and Abortion

  1. Kells Bells says:

    Just curious ….. what's your take on the death penalty? I do think the Founding Fathers had legal/moral ideals; so what say you?

    • MarkAmerica says:

      I am in favor of capital punishment. I am not in favor of the endless appeals in cases where the evidence is overwhelming, where there are many multiple witnesses, and so on. I believe that just as you can forfeit you other rights by violating the rights of others, so too can you waive your right to life if you poach the lives of other people.

  2. Laurie says:

    The notion that Life, Liberty, Pursuit of Happiness, pertains to innocent people is one of those no brainers. A guilty man can not pursue liberty obviously. I am not in favor of the death penalty because our system is to flawed and corrupt. But that is also one (just one) of my arguements for not being in favor of abortion. Medicine, is flawed as well. Working in Ob-Gyne, I've seen far to many babies diagnosed with something intrauterine, and come our perfect.

  3. rick geiger says:

    I don't see the abortion issue as you do, though I appreciate your interesting discussion. First, I don't see anywhere in the Constitution where the federal government has the right to go inside of a person's body. Where would that right come from? On the Obamacare issue people are arguing whether or not the fed gov has the right to force a person to buy something, how could you take the position that the fed gov does not have the right to force a purchase to buy something but it does have the right to go inside of your body to exclude your right to make a decision about what goes on inside your body. Now, I believe that life begins at conception and taking that life is killing, which makes decision-making about that life probably the most important decision a person can make, but because it is of Heavenly value, that does not give a politician decision rights over it. Your argument about the Dec of Indep. is interesting but I disagree with your interpretation of the facts. The Law of Nature and Nature's G_d put that life inside the mother, it is not a seed planted in the ground, it is planted inside the life of another person, and the the idea that any government can overrule G_d and state that the mother is separate from that life has no basis that I can see if you believe in G_d, for an atheist, maybe. And if the argument is around consistency, well, I personally don't give those types of arguments much validity because they are endless and can never be resolved by humans. For example, if the government has the right and obligation to protect all life, then why would it not be an obligation to provide food and shelter to each person, and for example, why would it not be an obligation to end practices we know for sure kill people, like selling alcohol to people that drive cars?. And why would it not be the federal governments obligation to provide healthcare for everyone, no matter the cost? In our society we do not everything possible to save lives, it is just a fact. Finally, before I bore you death, why not focus our efforts and resources at actually doing everything we can to preserve and protect life through other means like healthcare, counseling, and other various services. No, I do not want to give any government decision rights that are granted by G_d to a person.

    • Gwen says:

      We're not talking about protecting life, we're talking about not allowing murder! Murdering a baby outside of the womb is against the law, it should be against the law to murder a baby inside the womb as well! That may sound too simplistic but this arguement has gone on for too long and made too complicated when it really isn't!

  4. The KellyJaye says:

    Thanks for the rebuttal post. I am one of those who posted about the 'Personhood' Amendment. Excellent point you made regarding the Declaration of Independence.
    More food for thought!

  5. John says:


    Awesome Blog, I love this stuff.

  6. John says:

    Well Mark, you would be right. Except for one small detail: the Declaration of Independence has no bearing on the institutional functionality of the federal government in regards to our rights. The Declaration is a philosophical document, and nothing more. It provides the philosophical framework for our federal Constitution, but those quotes you gave do not designate the federal govenment as the ultimate gaurantor of rights. The Declaration did ZERO to actually implement the federal government as the gaurantor of rights, and you quoting it makes no sense if you are trying to make an institutional argument. In fact, at the time of the Declaration, most people viewed their own states as their national government. Jefferson, the author of the document, certainly did. Now since the Civil War, this has changed, and the states have lost a lot of power. But we need not throw out the Tenth Amendment altogether and view the federal government as the ultimate gaurantor of our rights. And it is certainly not legitimate to appeal to the Declaration to make an institutional argument — I could use those same quotes to make a philosophical argument for states' rights. The Confederates did this, and were defeated. But 150 years later, the Tenth Amendment still remains as the first line of defense against the federal government, which poses the greatest threat to the rights of individuals.

    But let's try it your way for a minute. The federal government is the gaurantor of the right to life. But the Constitution makes no judgment as to when life begins. So there is a discrepancy here — why can't the states decide when life begins? True, such state laws have been struck down. But who's to say we can't accomplish this one day with 6 or 7 strict constructionists on the bench? I say it's a definite possibility.

    And by the way, if you have any sincere desire to limit abortions in this country, federalism is the only potential vehicle for achieving that end. Period.

    • John says:

      Let me say though, Mark, that I truly appreciate your website, what you are doing, and how you are trying to impact hearts and minds for conservatism. God bless what you're doing.

    • MarkAmerica says:

      John, I realize that the courts have held that the Declaration of Independence has no legal providence with respect to our constitution or our system of government. I also recognize that our current constitution is not the first implementation of a confederated government among the several states on this continent. Like you, I see application for the 10th amendment, but not in respect to fundamental rights. The bill of rights, while not speaking to the abortion question, are rights nevertheless applied without respect to state sovereignty claims, are they not?

      I've actually had it argued to me that the last line of the fifth amendment actually creates a de facto right to life, if not explicitly mentioned elsewhere: "nor be deprived of life, liberty, or property, without due process of law;" but my argument has been that this would be a claim out of context.

      What institution is to be the guarantor of the right to life, if not the federal government? In effect, the argument put forward by the abolitionists was that the slaves were due the same rights. They had been effectively dehumanized via law. Is this not effectively the same condition under which the unborn now suffer? Federalism may be the only way to achieving that end, but it's shown damn little promise thus far, as you concede, because states have been able to do little to break through on the issue. The courts have thus far, since Roe V. Wade, effectively preserved the practice of abortions as a fundamental right with the federal government as the guarantor. In other words, the same institution I say should be guaranteeing the right to life is guaranteeing the right to destroy them. I'm not sure how the current application of federalism ever reverses that.