The New Federalist: America’s Founding Documents and Abortion

Scott R. Stripling

June 1, 1995

All Americans, whether pro-life or pro-choice, ought to be dissatisfied with the manner in which abortion has become the law of the land. They should reject the Supreme Court’s usurpation of the authority of the Congress to make laws or to amend the Constitution, which is precisely what the Court did in Roe v. Wade by "discovering" in the Constitution "new" rights. Roe v. Wade is in effect a piece of judicial legislation, a clear violation of the principle of the separation of powers.

Those who are pro-choice may now be satisfied with the Court’s decision, because it agrees with their view regarding abortion; but what the Court may give, it may also take away. It is entirely possible that some future Court will rule that there is no right to abortion, or will effectively "legislate" harsh restrictions upon the exercise of the right to abortion. If that should happen, to what principle will the supporters of abortion appeal to vindicate the justice of their cause?

Every issue of contemporary American political life, including the vexatious topic of abortion, may be understood better when viewed in the light of America’s founding documents, the Declaration of lndependence, the United States Constitution, and The Federalist Papers, co-authored under the pseudonym "Publius" by John Jay, Alexander Hamilton, and James Madison. The Federalist is not merely of interest to political scientists. It contains great practical wisdom which can help us find solutions to contemporary political problems. In The Federalist Papers, we find the authoritative interpretation of the United States Constitution and the principles upon which it stands. A study of The Federalist will show that the constitutionally proper place to debate and resolve the issue of abortion is, not the U.S. Congress, but the state legislatures. Some may argue that an issue of life and death such as abortion is too important to be left to t
he state legislatures to decide; but, as The Federalist states, it is precisely those issues which most of all concern "the lives, liberties and properties of the people" that ought to be decided by the states. Furthermore, there is already a precedent for allowing life-and-death issues to be decided by the states, namely capital punishment. It is permitted under the Constitution, but the states are left to determine for themselves whether and how capital punishment shall be allowed within their respective jurisdictions.

Over the past thirty years, the Supreme Court has ruled in a number of cases involving the constitutionality of certain state laws governing issues of sexual behavior, such as contraception, abortion, and homosexuality. These and similar laws clearly involve important moral and religious principles, and are inherently prone to incite controversy. In striking down these state laws, the Supreme Court may have believed that it was acting in accordance with the spirit of the Constitution; but from the perspective of the authors of The Federalist it acted unwisely and unconstitutionally.

Federalist 45 states the relevant constitutional principle in a clear and forceful way:

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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce … The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the state. [Italics added]

This passage reaffirms a principle that is absolutely fundamental for limited government, a principle which the Tenth Amendment states as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved by it to the states respectively, or to the people." That is, if the Constitution is silent about a power, presumption favors its retention by the states or by the people.

Clearly, issues of sexual morality belong in the category of "the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people." Accordingly, from the viewpoint of The Federalist, the authority to decide these issues rests with the states and their citizens. In striking down state laws governing sexual morality, The Supreme Court replaced the judgment of the people, expressed through their duly elected state representatives, with its own standard of morality.

The American Founders were convinced that moral and religious issues are generally better left to be decided by local consensus. They did not believe this because they were moral relativists. On the contrary, they emphatically rejected the view that morality is merely a matter of what one happens to believe is moral. But they also knew that human reason is fallible and easily deceived by passion and self-interest, especially when issues of life and death such as abortion are at stake.

The Founders believed that these issues are so difficult and controversial that wide general agreement on them is unlikely. As Madison said, we are not angels, nor are we governed by angels: we are a society of human beings governing other human beings. We do not possess divine wisdom. Intellectually honest people of good will can and do disagree passionately about the questions most important to human life. Therefore, it would be highly imprudent to attempt to enforce a national consensus on them.

In Roe v. Wade, the Supreme Court usurped the legislative power. It thus closed the normal constitutional outlet for the passions inevitably aroused by controversial subjects, namely, the state legislatures, and denied the public any constitutional means for expressing its will or venting its passions. The debates over abortion and other controversial issues, now raised to a national level, have accordingly become more rancorous and divisive. Thus, not only has the principle of the separation of powers been violated, but also the principle of representation based upon the consent of the governed. No one in America may be said to have consented to a law made by nine judges who are not accountable to the public will.

The Federalist makes clear that the Founders intended the Supreme Court to adhere to a strict construction of the Constitution. Some may argue that the debate over a strict versus a liberal construction of the Constitution is a matter for legitimate disagreement. Others may believe that nothing in the original intent of the Founders forbids the Court from actually malting laws, especially in difficult cases.

This view is refuted, however, by Federalist 81. That paper addresses the concern of those who argued that, if the Supreme Court were a separate and independent branch, its powers would be superior to those of the legislature, because, the "power of construing the laws, according to the spirit of the constitution, will enable the court to mold them into whatever shape it may think proper; especially as its’ decisions will not be in any manner subject to the revision or correction of the legislative body." The opponents of an independent judiciary feared that judges would ignore the plain meaning of the Constitution and feel free to interpret the "spirit" of the Constitution as it seemed to them.

Publius replies that "there is not a syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every state." The Constitution, he continues, "ought to be the standard of construction for the laws, and … wherever there is an evident opposition, the laws ought to give place to the constitution."

"But," he continues, "this doctrine is not deducible from any circumstance peculiar to the plan of the [Constitutional] convention; but from the general theory of a limited constitution." That is, built into the very notion of a limited constitution such as ours, is the principle of strict construction. No other principle of constitutional interpretation accords with the principle of the separation of powers.

Even more fundamental to our form of government is the principle that governments are instituted by human beings for the purpose of securing their rights and derive their authority from the consent of the governed. How does our Constitution secure our rights? By setting limits to their exercise. No right secured to us under our Constitution is secured without limit to its exercise.

This applies even to the rights to life, liberty, and the pursuit of happiness, said by the Declaration to be "unalienable." But the Fifth Amendment states: "No person shall … be deprived of life, liberty, or property, without due process of law." That is, if due process is observed, one may legitimately be deprived of one’s life. What happened to the "unalienability" of the right to life? The answer to this question is that "unalienable" doesn’t mean "unrestricted." The rights with which we are endowed by "nature’s God" are insecure in the state of nature–John Locke’s name for the human condition outside political society–precisely because they are unrestricted. In the state of nature, there exists no commonly recognized authority with the power to limit the exercise of rights.

Furthermore, because human beings unfortunately tend to try to get their way in spite of the best interests of others, The unlimited exercise of rights leads to chaos. No right secured to us under the Constitution, including the right to life, is secured without limit to its exercise.

Thus, capital punishment is not unconstitutional. It is permitted under the Constitution; but the states are left to determine for themselves whether and how capital punishment shall be allowed within their borders. That decision is left to the voters, which is as it should be. It would be absurd to insist that the prevailing view regarding capital punishment in, say, Mississippi, should prevail in Massachusetts.

Clearly, the public moral consensus on abortion also varies from state to state and from region to region. It is most improbable that we shall ever attain a national consensus on this issue, nor is it in the public interest that we attempt to achieve such a consensus. The resolution offered by our founding documents to the abortion debate is to treat it in the same manner as capital punishment, and to allow citizens to lobby their state legislators to make their opinions heard.

We tend to think that "multiculturalism" and "diversity" are contemporary discoveries; but the Founders knew that in a representative democracy such as ours, there would be profound diversity of opinion over difficult issues like abortion. If we follow the wisdom of the Founders, we shall take the debate over abortion out of the Supreme Court, where it has been decided oligarchically by judicial fiat, and let the voters of the states decide the matter for themselves democratically by voting. This is the clear sense of the Constitution.

Scott R. Stripling, Ph.D., is Director, National Center for America’s Founding Documents, School of Education, Boston University.