The Palmetto Freedom Forum, at which I had the privilege of joining South Carolina Sen. Jim DeMint and Iowa Rep. Steve King as a questioner of the leading Republican presidential contenders, was designed to assess (a) how deeply the candidates understand the animating principles of our democratic republic and (b) how firmly they are committed to governing by those principles if elected.
Each questioner had exactly 6 minutes and 25 seconds to engage with each candidate. Although that is not a great deal of time, it did allow us to dig deeper into the candidates' understandings and convictions than is typical in presidential debates.
Here is what one commentator referred to as my "electric question":
"Many believe that we need a constitutional amendment to overturn Roe v. Wade. However, Section Five of the 14th Amendment (already) expressly empowers the Congress, by appropriate legislation, to enforce the guarantees of due process and equal protection contained in the Amendment's first section. As someone who believes in the inherent and equal dignity of all members of the human family, including the child in the womb, would you propose to Congress appropriate legislation, pursuant to the 14th Amendment, to protect human life in all stages and conditions?"
To the surprise of many, the first three candidates — Michele Bachmann, Herman Cain and Newt Gingrich — all said "yes." Ron Paul said "no." And Mitt Romney said "no, but ... "
Conservative blogger Jennifer Rubin was annoyed by my question and appalled by the affirmative answer given by Bachmann, Cain and Gingrich. I had, she opined, sent the candidates off in pursuit of a "lark" — the idea that abortion could be restricted without the Supreme Court reversing itself on Roe v. Wade. Worse yet, I was inviting them to endorse "lawlessness" — and they foolishly accepted the invitation! She praised Romney for being "adult" enough to politely decline to go along with so absurd and dangerous an idea.
Well, now, let's look at what we have here.
Rubin supposes that when the Supreme Court hands down a ruling, however lawless it may be, that ruling is now the law and, as such, binds the other branches of government. For the president and Congress to refuse to treat the Court's Diktat as controlling their actions would be unconstitutional and thus lawless.
Rubin is hardly alone in endorsing (or simply assuming the unquestionable validity of) judicial supremacy. It is a view widely held these days, especially among defenders of liberal judicial activism (Rubin herself is not one of those, by the way), but it was not the view of the American founders or of Lincoln.
Nothing in the Constitution itself confers upon the Supreme Court supremacy in constitutional interpretation. Even those Founders, such as Hamilton, who interpreted the document as implying a power of judicial review (the Constitution does not expressly confer such a power) did not interpret that power as establishing the supremacy of the judicial branch over the others. Nor is judicial supremacy consistent with the structure or logic of the system of government established by the Constitution.
Abraham Lincoln could not have been clearer in his rejection of judicial supremacy or more forceful in his denunciation of it as a mortal threat to republican government — government by and for the people, the type of government for which Lincoln was willing to fight a bloody civil war.
The issue presented itself in his era in the context of a decision remarkably like Roe v. Wade. That was the Supreme Court's ruling in the case of Dred Scott v. Sandford, denying the authority of Congress to restrict slavery in the federal territories and depriving blacks, even free blacks, of the rights of citizenship.
Like Roe, Dred Scott was a case of extravagant judicial overreaching. It lacked any basis in the text, logic or original understanding of the Constitution. It was a gross usurpation of the power of the people acting through their elected representatives in Congress.
Lincoln as president refused to treat the Court's holding in Dred Scott as binding on him or the Congress, and he supported legislation (which was enacted) and took executive actions that directly contravened the holding.
Did Lincoln believe he was acting lawlessly? Did the American people believe he was acting lawlessly? Well, Lincoln certainly had his critics, and they accused him of all sorts of things, including tyranny, but few regarded his rejection of judicial supremacy as constituting lawlessness.
That is scarcely surprising, for the Great Emancipator was merely echoing the author of the Declaration of Independence, Thomas Jefferson, who warned that the acceptance of judicial supremacy would place the nation "under the despotism of an oligarchy."
Ron Paul responded to my question not by embracing judicial supremacy, but by denying that the 14th Amendment authorizes Congress to legislate to protect the unborn. Interestingly, Paul himself has a perfect pro-life voting record — in Congress. In his view, however, the abortion question is one that the Constitution leaves ultimately to the individual states, not the national government.
But the Constitution, in its 14th Amendment, plainly does delegate to Congress power to enforce its guarantees of due process and equal protection.
Romney offered a nuanced answer to my question. He declined to commit to proposing legislation that would directly challenge Roe v. Wade, saying that to do so would provoke a constitutional crisis. At the same time, he carefully avoided endorsing judicial supremacy. He addressed the question as a matter of prudence, not of constitutional principle.28 comments on this story
He did not say, as Rubin later would, that legislation defying Roe would be "lawless." Indeed, he said that he could not rule out the idea that a time would come when direct defiance of a lawless Supreme Court decision would be justified and necessary. He argued, however, that Roe could be handled by appointing constitutionalist judges who recognize it as a constitutional error and would reverse it. He pledged to appoint such justices.
For what it is worth, my own view of the prudence of the matter differs from the governor's. So, for example, I thought it was right for Congress to enact a prohibition on partial-birth abortion, despite the fact that the Supreme Court had previously struck down such a prohibition as inconsistent with Roe v. Wade. (On the second try, as it happens, the Court — wiser in virtue of the addition of Associate Justice Sam Alito — upheld the prohibition.)
Like Paul, Romney took the position that the protection of the unborn is ultimately a state responsibility. So, after the Court reverses Roe v. Wade, as he hopes it will, he would leave the issue in the hands of the states. Of course, that leaves the question of whether Congress should step in, pursuant to the 14th Amendment, to protect the unborn in the event that some states decline to fulfill their responsibility to do so. Unfortunately, there was not time to explore this question with Romney.
Robert P. George is a member of the Deseret News Editorial Advisory Board. He is McCormick Professor of Jurisprudence and director of the James Madison Program at Princeton University, as well as founder of the American Principles Project, which sponsored the Palmetto Freedom Forum. An earlier version of this piece appeared in The Public Discourse, an online publication of the Witherspoon Institute.