Lindsey Graham gets blistered by Glenn Reynolds on the Constitution

Leave it to a Constitution Law professor to 'teach' Sen. Lindsey Graham a lesson about the necessity for a healthy competition between the states and the federal government. That's what happens in Reynolds' latest column.

The column starts -- and ends -- on the subject of Lindsey Graham's federal abortion ban. Reynolds writes "The Supreme Court earlier this year found the US Constitution does not recognize the right to have an abortion. Now Sen. Lindsey Graham (R-SC) wants Congress to act."

After that, Reynolds starts with his lesson on the Constitution, saying "That’s not because the Constitution offers special protection for abortion as such. No, there are constitutional limits to how far Congress’ powers go, and those powers don’t go so far as to reach abortion." That's because the Ninth Amendment says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Tenth Amendment's text says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In other words, if the Constitution doesn't give the federal government the responsibility for something, that responsibility is left to the states and the people.

Then there's this:

Article I spells out a long list of things Congress can do, but the list, while long, isn’t all-embracing. Congress has the power to lay and collect taxes, borrow money (no one would accuse it of not doing that), declare war, establish post offices and post roads, etc.

But wide latitude isn’t the same thing as carte blanche. As James Madison wrote, "The powers delegated by the proposed Constitution to the federal government are few and defined." A review of the Constitution will demonstrate this to be the case. It will also show that the power to regulate abortion isn’t among them.

Democrats insist, at least publicly, that the Supreme Court took away a woman's right to choose. That's a lie. The Constitution never mentions the subject. Essentially, Roe v. Wade created a right. Prior to that ruling, each state had their own laws dealing with abortion. But I digress.

In the 1995 case United States v. Lopez, the court opened its analysis with words that Graham and other Republican lawmakers in Congress would do well to consider: "We start with first principles. The Constitution creates a Federal Government of enumerated powers. . . . As James Madison wrote, '[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.'"

This is the ABC News report on Sen. Graham's bill:

It's dishonestly titled "Republican Sen. Lindsey Graham proposes nationwide 15-week abortion ban."The bill as submitted doesn't ban abortions. It bans abortions after 15 weeks except in cases of rape, incest and to protect the life or health of the mother. The definition of the word ban is "to prohibit, forbid, or bar; interdict:"

This is instructional but it's a foolish move politically. Sen. Graham's bill is already being used by Democrats to demagogue the issue. Further, the bill isn't going anywhere.