The 2020 Democratic Party presidential candidates have been falling all over themselves, of late, to see who can take the most extreme kid-killing policy position possible. But it seems that intersectional darling and self-flagellating ex-prosecutor Sen. Kamala Harris (D-CA) has jumped out into a commanding lead.
As The Wall Street Journal highlights, Harris' presidential platform will apparently call for a "Reproductive Rights Act that would create a preclearance requirement, meaning states and localities with a history of violating Roe v. Wade ... would have to get approval from the Justice Department for any abortion-related measure to be enforced." The so-called "Reproductive Rights Act" would therefore operate in a similar fashion to the Voting Rights Act of 1965, which similarly inverted federalism in an extra-constitutional manner so as to definitively quash the unique evil of Jim Crow-era franchise infringement of blacks across the American South.
Harris' proposal is misguided and unconstitutional.
Let's start with first principles. Although the Founding Fathers' constitutional enshrinement of a tripartite separation of powers framework was more or less directly adopted from the French political theorist Montesquieu, their creation of a true federalist system of dual spheres of sovereignty was a unique contribution to the Western political theory canon. The states, which created the federal government, assigned to the latter only strictly enumerated powers — for Congress, which was intended to predominate at the federal level, these enumerated powers can be seen in Article I, § 8 of the constitutional text. As both basic constitutional structure and the 10th Amendment both then make clear, the states were to have plenary control over all unenumerated areas of governance that were not expressly delegated to the federal government. As James Madison famously put it in The Federalist No. 45: "The 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."
Holding policy merits aside, the Voting Rights Act of 1965 inverted this Madisonian framework. Instead, under the Voting Rights Act, select states and localities were forced to receive the federal government's blessing before implementing any change with respect to voting. The issue with this, from a legal perspective, is that voting in our constitutional order has long been generally understood as a privilege over which the states have something closely akin to plenary power to regulate — with constitutionally enumerated exceptions, such as those which appear in the 15th, 19th, 24th, and 26th Amendments, aside — as they see fit. Justice Hugo Black explained well the constitutional tensions inherent in the Voting Rights Act in his partial concurrence/dissent in the 1966 U.S. Supreme Court case of South Carolina v. Katzenbach, which upheld the constitutionality of the Voting Rights Act:
Section 5 [of the Voting Rights Act], by providing that some of the States cannot pass state laws or adopt state constitutional amendments without first being compelled to beg federal authorities to approve their policies, so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless. One of the most basic premises upon which our structure of government was founded was that the Federal Government was to have certain specific and limited powers and no others, and all other power was to be reserved either 'to the States respectively, or to the people.' Certainly if all the provisions of our Constitution which limit the power of the Federal Government and reserve other power to the States are to mean anything, they mean at least that the States have power to pass laws and amend their constitutions without first sending their officials hundreds of miles away to beg federal authorities to approve them.
In the 2013 U.S. Supreme Court case of Shelby County v. Holder, wherein the Chief Justice John Roberts-led majority invalidated the outdated Section 4 "coverage formula" used for determining which states and localities were subject to preclearance, originalist stalwart Justice Clarence Thomas went further in a sole concurrence that channeled Black's partial dissent in Katzenbach and directly targeted Section 5's entire preclearance edifice altogether:
Though § 5’s preclearance requirement represented a "shar[p] depart[ure]" from "basic principles" of federalism and the equal sovereignty of the States ... the Court upheld the measure against early constitutional challenges because it was necessary at the time to address "voting discrimination where it persist[ed] on a pervasive scale." ...
Today, our Nation has changed. "[T]he conditions that originally justified [§ 5] no longer characterize voting in the covered jurisdictions." ...
[C]ircumstances in the covered jurisdictions can no longer be characterized as "exceptional" or "unique." "The extensive pattern of discrimination that led the Court to previously uphold § 5 as enforcing the Fifteenth Amendment no longer exists." ...
By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision. For the reasons stated in the Court’s opinion, I would find §5 unconstitutional.
But if Justice Thomas is right that protections for the franchise against racial discrimination, as the 15th Amendment constitutionalized, are no longer worthy of such a structural constitutional inversion, then "protections" for the wholly fabricated faux-constitutional "right" of abortion are definitely not worthy of such a constitutional inversion. Roe v. Wade, of course, wholly made up a purported constitutional "right" to kill an unborn child in utero. Roe, by fabricating a new constitutional "right" that rejected the natural personhood of an entire sub-class of human beings and institutionally self-aggrandized to the federal judiciary an area of policy under the faux, atextual doctrinal guise of "substantive due process," ought to be properly viewed as the direct legal and moral successor to the infamously abhorrent 1857 case of Dred Scott v. Sandford. As even left-leaning constitutional law scholar John Hart Ely once famously said of Roe, it "is not constitutional law and gives almost no sense of an obligation to try to be."
Finally, there is the additional point that the elite legal/political consensus with respect to stamping out racial discrimination in the 1960s simply does not exist (nor should it, of course, exist) with respect to "protections" for the faux-constitutional "right" of killing unborn children in utero. And it is precisely such an elite political/legal consensus, with the concomitant social/political capital that such a consensus necessarily entails, that would be necessary for such a constitutional inversion to take firm root throughout our legal order. The Journal quoted New York University Law School Professor Rick Pildes, who said:
"When the Voting Rights Act was first enacted, there was an overwhelming consensus sustaining it across all critical national institutions, including the Supreme Court, Congress, the presidency and the Justice Department. That kind of consensus does not exist as of now on the abortion issue, and there’s no escaping the shadow of the Supreme Court."
Pildes is precisely right. And Kamala Harris, as is so often the case, is precisely wrong. Her call for a "Reproductive Rights Act" must be vehemently rebutted.