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Robert P. George: How would Republican candidates fight Roe v. Wade?

Published: Sunday, Oct. 9 2011 12:00 a.m. MDT

Pro-life protester Tim Moore stands near a Planned Parenthood office protesting abortion, while a pro-choice advocate marches in the background.

Jeffrey D. Allred, Deseret News

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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.

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