The Catholic Thing
Rick Perry and the Snare of that Tenth Amendment Print E-mail
By Hadley Arkes   
Tuesday, 02 August 2011

G. K. Chesterton remarked once on the man who comes to care for one part of Catholicism more than he cares for Catholicism itself. He takes that one part into the wilderness, and makes of it an idol.   

I had the occasion a few weeks ago to note the travails of that engaging woman, Michelle Bachmann, as she confronted the question of same-sex marriage in New York – and managed to divert herself from the main moral and substantive question by her fascination for the Tenth Amendment. Some of our friends make an idol of the Constitution, detaching it from that Union it was meant to improve, and then they go on to make an idol of the Tenth Amendment, while detaching it from the Constitution itself. 

The Tenth Amendment proclaimed the rather elementary point that all powers not assigned to the federal government, nor barred to the states, are reserved to the states or to the people.  But that amendment has never given us any precise guidelines that separate the national community and its concerns from the jurisdiction of the states; nor has it marked off clearly that domain of private liberty that should not come within reach of the laws and public authority. And yet some of our friends, in distraction, treat the amendment as though it were the key to the most serious questions we face.

But now the lure of that distraction has shown its power once again, this time for that estimable figure, Rick Perry, the Governor of Texas and possible candidate for president. In the case of Perry, the amendment seemed to work to relieve him of any serious reflection on abortion as a concern for a president of the United States. 

Perry remarked that if Roe v. Wade were overturned, the matter of abortion would be subject again to legislation by the states and that is where the matter should be dealt with. “You either have to believe in the Tenth Amendment or you don’t,” he said. 

Perry is of course perfectly right, that if Roe v. Wade were overturned, the states would recover their power to legislate in imposing serious restrictions, even restrictions that come near banning abortions as a practical matter. But why would Perry assume that the federal government has no business acting in this domain? The problem, after all, emanated from the center. It was the intervention of the federal courts, striking down laws on abortion within the states that converted abortion into a federal or national issue.

            Why does Gov. Perry see no federal role in ending abortions?

The corrective, then, needs to come in part from the center. In some critical respects, it needs to be led from the Supreme Court. Even without overturning Roe v Wade, the court with John Roberts and Samuel Alito seems to be at work now in scaling back that decision in increments as it sustains restrictions on abortion in the states. 

But even apart from the court, are Perry and others forgetting the places where the federal government faces the need to make decisions every day about abortion? There is the matter of whether abortions may be performed in military hospitals or in military and diplomatic outposts abroad. There is the matter of using fetal tissue from elective abortions in the National Institutes of Health. 

And have people forgotten that the national government does have an ultimate and “exclusive” authority to legislate for the District of Columbia? Any choices that are available to a local government in permitting or restricting abortions, regulating clinics and their staffs, are choices that must come before the Congress, acting as a legislature for Washington, D.C.

But beyond that, there are the legislative powers of Congress that have not yet been fully engaged. The reach of the federal government has been extended over the past fifty years by the device of giving and withholding federal grants. If a pro-life Congress took a firmer hold, we may see the threat to withhold all federal grants from hospitals and clinics, say, that house the “live birth abortion,” the procedure in which a child is delivered alive and placed in the refuse room of the hospital to die.    

The Born-Alive Infants’ Protection Act forbade that so-called abortion. But that Act did not carry penalties, and the late Bush Administration ran into serious problems as it tried to enforce that law. Still, even without penalties attached, that Act is on the books; it is a statute of the United States. And therefore, any clinic or hospital that houses this kind of abortion is involved in an activity that is strikingly “not in accord with the public policy” of the United States.  

Those clinics could lose their tax exemptions. And there is hardly a hospital or clinic that could stay in business in this country without federal grants and tax exemptions. All of these things are possibilities that come easily within the reach of the next pro-life president and Congress. And those measures alone could bring us to the endgame on abortion.

One of the curious parts of the fixation on the Tenth Amendment is that it detaches Bachmann and Perry from the Constitution as a whole. It strangely obscures for them the larger constitutional scheme in which the national government bears responsibilities it cannot rightly evade – and faces questions that the political class would rather not face.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.
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Comments (1)Add Comment
written by Jordan, August 02, 2011
I read about his comment about it the other day. If he is pro-life then he would understand murder. Instead he is pro-political correctness, pro-himself.

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