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This apparently flew under the radar when it was introduced by a Congressman I'd never heard of on the 24th, because I only just now read about it (Trump and his nominees have really been hogging the spotlight...), but H.R.722 - To implement equal protection under the 14th article of amendment to the Constitution for the right to life of each born and preborn human person (text not yet available, but presumably along the lines of its title) has 67 co-sponsors, as of now. Anyone know the intra-party politics of this? Is there caselaw on whether or not a statute can specify how the Constitution should interpreted?
Yes, and the answer is emphatically no in direct terms. Quoting directly
Boerne v. Flores
https://scholar.google.com/scholar_case?case=8746804851760570747&hl=en&as_sdt=6&as_vis=1&oi=scholarr
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At least 67 republicans care more about banning abortion than about winning elections.
Current SCOTUS caselaw is that statutes can't dictate constitutional interpretation. Given that this bill wouldn't ban abortion, what are the politics of it?
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Ordinarily Congress can’t just specify what they think the Constitution means, though there’s caselaw about the possible ways in which courts might defer to Congress in certain cases.
But the 14th amendment, like a lot of the amendments, ends with a section that gives Congress a lot of leeway: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” A huge portion of civil rights law and federal power over the states comes from this simple delegation of power. Presumably the claim is that Congress would simply be enforcing the amendment to a class of persons to whom it already applies, just in an unenforced way. This is why the title of the act says “implement” — the claim is that the blueprint already allows for this but that they just want to build it.
All Congressional action comes under review by the courts, but Congress can of course claim any power it wishes even if the courts see fit to strike it down.
See this comment that directly addresses the use of 14A§5 to redefine the meaning of the 1A.
I really don't think these exercises are very useful. The Court has foreclosed this, unless you want to overturn settled precedent.
Yes, I want to overturn settled precedent. There are many, many so-called settled precedents that are odious to the constitution, first and foremost Wickard v Filburn.
As long as that ruling stands, you can't simply gesture to precedent, because as long as that ruling stands, I'm willing to burn every single precedent to overturn it.
In other words, you have to affirmatively make the case that precedent deserves to be respected, and you have to make that case every single time.
This precedent has nothing whatsoever to do with Wickard. There is no connection between them.
Yes there are bad precedents. The purpose of precedent is not to pretend like they are all correct or can never be overturned (see, e.g. Roe and Dobbs). This is all a bizarre straw man.
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Do you think there's appetite to reverse it?
What sort of modern case would you see as a candidate for this?
I know there's appetite to reverse it. I don't know whether the entrenched institutions would have any such people.
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Which SCOTUS decisions are based on this? I thought it was the Commerce and Necessary and Proper Clauses, a la Wickard.
Yes - the Slaughterhouse line of cases basically gutted the 14th amendment, including ruling that the enforcement clause didn't grant a power to pass laws affecting non-State actors given that the substantive clauses were directed at the States. Rather than straightforwardly overturning this as wrong the way they did with Plessey, the Civil Rights Era SCOTUS decided that it didn't matter because Wickard said that everything was necessary and proper to the regulation of interstate commerce.
I think the enforcement clauses of the Reconstruction amendments was supposed to be granting a new, freestanding enumerated power to Congress. But apparently there is a bipartisan consensus among Supreme Court justices that Congress should get its powers from the Supreme Court and not from the Constitution.
Well this makes no sense at all.
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