Over the weekend, Republican presidential candidate and former Arkansas Governor Mike Huckabee made some comments at the Iowa Family Leader Conference about how he’d handle abortion – and abortion advocates are in a tizzy:
I’m convinced the next President should ignore the unconstitutional and illegal rulings of the courts, including that of same-sex marriage, because it is not the law of the land, it was a judicial overreach, and the next president should do what Jefferson, Jackson, Madison, and Lincoln all believed should be done: ignore the court. Defy the court. Because it is the Constitution—not right—but the constitutional responsibility of the president to not allow the judicial branch to overreach.
And as far as we’ve, often, for many of us, we’ve fought the life issue since the seventies. For 42 years we’ve been on the defense. And the fact is, it’s time for us to quit being on the defense. The next president should say not “we have to pass a constitutional amendment,” ‘cause we don’t. We simply accept the Constitution as we currently have it. And we invoke the Fifth Amendment, which guarantees due process before you can deprive any person of life or liberty, and the Fourteenth that guarantees equal protection under the law, and we simply say, “there will be no abortion because that unborn child is a person.” And if it is not a person then it is entitled to no due process.
I finish with this: if that sounds radical to you, if that sounds bold to you, so be it. But it is radical that we have eliminated 60 million unborn children in this country, and we have pretended that there’s nothing we can do about it.
This is a mixed bag. Huckabee is correct that the judicially-imposed “right” to abortion is an unconstitutional, anti-democratic farce. He’s right that our politicians aren’t doing nearly enough to push back against the judiciary, and are ultimately failing their basic responsibility to check and balance the other branches of government. And he’s right that we don’t need to amend the Constitution to outlaw abortion because a proper reading of the 14th Amendment guarantees equal protection to the preborn.
But he seems not to have thought things all the way through. The 14th Amendment also expressly says that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article”—not the President. And despite rightly drawing attention to the problem of the judiciary, he discusses none of the specific tools the Constitution already gives us to rein them in, such as impeaching judges or using Congress’s Article III, Section 2 power to deprive the Supreme Court of jurisdiction over abortion.
So there’s legitimate criticism to be made about Huckabee’s comments. What’s not legitimate, however, is for supporters of judicial abortion activism to turn around and claim the constitutional high ground.
Right Wing Watch, a blog that documents alleged “extremism” from conservative figures, seized on the video as a prime example, leading various pro-abortion websites to repost it. Fox News host Alan Colmes condescendingly reminds Huckabee that “there are some things a President can’t do. Just ask President Obama and every other President who has been frustrated by the limits on executive power,” while Patheos blogger Ed Brayton suggests this makes Huckabee a hypocrite because if “Obama did that, of course; then it would be an outrageous HitlerStalinMao action” and should make people “glad that his odds of becoming president are about equal to those of Mr. Snufflupogus.”
Sorry folks, but not all constitutional errors are created equal.
The Constitution does contain a right to life for all persons that is not conditional on age or developmental level. It does not contain a right to abortion. So right from the outset, pro-lifers are pursuing a fundamentally legitimate end while pro-aborts want a fundamentally illegitimate one. And because the Constitution doesn’t compel state or federal government to allow abortion, taking the issue out of the electorate’s hands by judicial fiat is an illegitimate means, as well.
Huckabee is attempting to pursue the right thing in the wrong way. Abortion advocates want to do the unconstitutional thing and want do it the unconstitutional way. So thanks, but we’ll pass on the law lecture.