Tenther attorney David Kopel mocks GOP presidential candidates Michele Bachmann, Newt Gingrich, Tim Pawlenty, Ron Paul, and Rick Santorum for signing a pledge promising to tell many women that their aborted fetuses feel pain. As he explains, federal laws restricting abortion violate states rights under his tenther view of the Constitution:
In Gibbons v. Ogden, Chief Justice Marshall explained that “health laws of every description” are outside the scope of the federal commerce power. The statement has been cited with approval by other Supreme Court justices at least 20 times. As Wickard v. Filburn observed, the Marshall opinion in Gibbons “described the Federal commerce power with a breadth never yet exceeded.” [...]
Marshall’s opinion in Gibbon [sic] may be considered the outer boundary of any originalist interpretation of the interstate commerce power. What doctors tell patients before providing abortions is obviously not interstate commerce, all the more so since the vast majority of patients do not cross state lines to obtain abortions.
Kopel’s claim that “health laws of every description” are beyond Congress’ power to regulate the national economy is obviously wrong. While those words do appear in Marshall’s Gibbons opinion, the very next paragraph of the opinion explains that Congress may enact health laws “for national purposes.” So a federal law regulating the national health care market, or the nationwide market for health insurance, or even the national market for abortion services would easily fit within Congress’ commerce power — although it could very well conflict with decisions protecting a woman’s right to choose and thus violate the Fifth Amendment.
Nevertheless, Kopel’s disagreement with the five GOPers who prioritized their anti-choice views over tentherism highlights a very real divide within the Republican Party. Currently, while the GOP’s goal appears to be keeping President Obama from accomplishing anything, a radical libertarian view of the Constitution such as tentherism makes a lot of sense. If your agenda is to halt President Obama and maybe repeal Medicare while you are at it, why not adopt a vision of the Constitution that says pretty much everything the federal government does is unconstitutional?
Yet, when the GOP regains power — as they will inevitably do at some point in the near or distant future — they are unlikely to be as excited about a constitutional theory that renders them impotent. Indeed, we already saw this conflict play out earlier this year when tenther Reps. Ted Poe (R-TX) and Louie Gohmert (R-TX) briefly rebelled against a GOP-sponsored tort reform bill because it violates tentherism’s fake constitution. In the end, Poe and Gohmert were unsuccessful in stopping the bill, as many of the same GOPers who pledged allegiance to tentherism before the election decided that they would rather implement their entire agenda than follow a fabricated Constitution.
In other words, it’s clear the GOP doesn’t really believe much of anything about the Constitution — except that it lets them do whatever they want and forbids progressives from doing anything they want to do.