At yesterday’s GOP candidate’s forum in South Carolina, Rep. Michele Bachmann (R-MN) told Princeton professor and anti-gay activist Robert George that she would support an unconstitutional bill attempting to reverse the Supreme Court’s decision in Roe v. Wade:
GEORGE: Would you as president propose to Congress appropriate legislation pursuant to the Fourteenth Amendment to protect human life in all stages and conditions? [...] Given the clear mandate of the Fourteenth Amendment empowering Congress to enforce the guarantee of Equal Protection shouldn’t Congress act on that now?
BACHMANN: Yes, I believe that they should. [...]
GEORGE: And if it meant a confrontation with the Supreme Court are you prepared for that?
BACHMANN: Most assuredly.
The 14th Amendment does not just grant certain civil rights protections to all persons in the United States, it also gives Congress the “power to enforce, by appropriate legislation” those protections. So if the 14th Amendment actually did place limits on abortion, Congress would have the authority to pass laws enforcing those limits. Essentially, George wants Bachmann’s legislation to simply declare that the 14th Amendment restricts abortion — despite the Supreme Court’s declaration that the opposite is true — and then piggyback upon this constitutional rewrite to ban abortion outright.
This is an odd suggestion for several reasons — not the least of which is the fact that, if Congress has the power to turn one Supreme Court decision on its head, there is nothing preventing it from requiring mandatory school segregation or prohibiting Democrats from exercising the First Amendment rights. Our Constitution means something because it can not simply be waived away by legislative fiat.
Moreover, George and Bachmann’s proposal doesn’t just thumb it’s nose at Roe v. Wade, it also thumbs its nose at one of the most significant recent decisions limiting congressional power. In City of Boerne v. Flores, the Court held that Congress is not allowed to simply declare that the 14th Amendment means whatever they want it to mean and then use that declaration to pass enforcement legislation — Congress can only pass laws enforcing existing 14th Amendment rights.
Indeed, it is more than a little bizarre that Bachmann — who bases much of her campaign on paranoid fantasies about how “Obamacare” is an unconstitutional assault on America itself — would want Congress to have the power to write its own meaning into the 14th Amendment. If Congress has the power that she and George claims that it does, then there is nothing preventing Congress from simply declaring that the 14th Amendment creates a fundamental right to health care and that the Affordable Care Act enforces this right.
Bachmann loves to rail about the need for limited government, but she has now embraced a constitutional theory that would effectively give Congress unlimited authority by empowering it to declare any right that it wants and then pass legislation enforcing that right. In other words, Bachmann’s support of George’s unconstitutional proposal doesn’t just prove that she doesn’t understand how the actual Constitution works, it provides yet another example showing that she doesn’t even understand how the Tea Party’s fake constitution works.