Giuliani and Thompson get constitutionality and federalism right
By Bruce Walker (05/17/07)
Recently Rudy Giuliani made a statement about his position on abortion which was "confusing" to a lot of social conservatives. During a FOX News interview with Fred Thompson, my wife thought that he did great except for a "confusing" response to a question about gay marriage. Actually both men, good federal prosecutors with background in constitutional law, hit the questions out of the ballpark.
What did they say? Consider Giuliani’s response first. He believes that a strict constructionist could overrule the odious Roe v. Wade decision. In the raging controversy over the last thirty-five years, many pro-life conservatives (like me) have been led to believe that overruling Roe v. Wade would make abortion illegal. It would do nothing of the kind. What would happen is exactly what existed prior to Roe v. Wade: the issue of whether a fetus is a human life and the issue of what protections must be given to human life would stop being an issue decided by federal judges and again be an issue decided by state legislators.
Recall that abortion was legal prior to Roe v. Wade. Recall that murder itself is illegal only because state legislatures have passed criminal laws making murder illegal. Recall that even issues of the most drastic involving a “woman’s reproductive rights,” like making rape illegal, is a matter of state criminal law. What Rudy was asking for – or at least suggesting – is that we again allow state governments to decide these issues through their elected officials.
When Fred Thompson was asked about gay marriage, he said that we needed to amend the Constitution to provide that in this one area – gay marriage – states do not have to give “full faith and credit” to the records of another state. In other words, if a New Hampshire gay couple wants to marry and New Hampshire legalizes that marriage, then if the couple moves to Mississippi, the State of Mississippi would not have to recognize the couple as legally married.
Marriage has always been governed by state law. The age of consent to marry has been a matter of state law, the degree of familial separation has been a matter of state law, the grounds for divorce has been a matter of state law. These are unquestionably vital moral and legal issues, just like what constitutes murder (and what constitutes self-defense) and what constitutes rape.
Until the Left began using federal courts to impose their social values on the American people by removing state legislators from the equation, this worked well. Nothing preventing a state from setting the age of consent for marriage at 10, but no states did. Any state could have said that insulting your reputation constituted grounds for homicide, but no states did. Nothing prevented states from allowing siblings to marry, but no states did. Nothing prevents states from legalizing prostitution, but only a county or two in Nevada has done so.
Social conservatives have to decide who they trust more: unelected federal judges or elected state legislators. Which of those two classes of government officials is most likely to represent the social and moral values we cherish? Stated another way, do the people of individual states want to govern themselves or do they want the Supreme Court governing them?
We can blame the disintegration of moral values in America for some areas of our nation for the adoption of certain offensive statutes and court rulings, but both Giuliani and Thompson are correct about the response that those of us in Flyover Country should make. State governments have always had the power to pass all sorts of obscene and profane laws, but – until recently – now people in any state would tolerate that sort of legislation.
What we want is the right to control these issues in the states in which we live. What we want is the right to advocate that other states, states which have gone astray, see the error of their ways and move back to moral decency. That is a battle that social conservatives must make and we can only do that effectively when we get Supreme Court justices who will devolve those issues back to state governments and who will stop inventing constitutional rights that trump states’ rights.
Why is this issue so confusing? Why did the answers that Rudy and Fred gave seem evasive or confusing? It is because generations of Americans have been led to believe that every social issue is national, is constitutional and is judicial. Both these gentlemen wisely understand the true nature of the problem.
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