A new, potentially, game-changing factor has crept into the GOP presidential race. It used to be enough to win the pro-life caucus goers and primary voters to be for overturning Roe. That may be about to change. If it does, all bets on whether Mitt Romney and Rick Perry will remain front-runners are off.
Why might the nearly-dormant Life issue come back to, well, liven and shake things up? A fissure has opened on this issue. The candidates are in agreement on the core anti-spending, anti-tax, anti-regulatory issues and, with the exception of outlier Ron Paul, on foreign policy. The race won’t turn on who will repeal Obamacare fastest. Free market differentiating issues such as the gold standard (advantage: Paul) and immigration (advantage: Perry) have not yet come front and center, although they may.
But there is a huge, and, potentially, politically critical, difference about the right to life. Should we repeal Roe and leave it to the States? Or should the federal government provide legal protection to the unborn? A candidate who relentlessly hammers this home will have a powerful advantage with the social conservatives (the pro-life camp), in the Tea Party (pro-constitution), and moderates (for whom abortion is not a key issue but are just tired of having candidates attempt to finesse them).
In the American Principles/Palmetto presidential candidate forum earlier this month Romney promised to appoint Supreme Court judges to reverse Roe and send it back to the states; a Tenth Amendment States Rights strategy. To cop the fifth, in detective genre slang, means to plead the Fifth Amendment and avoid answering a question. Romney copped the tenth.
Paul took a similar position. And Perry, kept away from the forum by wildfires, had taken a state sovereignty posture, then pedaled into a constitutional amendment. This is genuinely problematic.
Perry has embraced a constitutional convention worth of amendments. It is not clear where this one stands in the pecking order of: abolishing lifetime tenure for federal judges, giving the Congress the power to override the Supreme Court, scrapping the federal income tax, ending direct election of Senators, balancing the federal budget, banning gay marriage, and prohibiting abortion.
Getting just one amendment passed could fill the plate of an administration. And why go to the prohibitive effort of getting a supermajority of both houses of Congress and three-quarters of the States? Proposing a constitutional amendment is not exactly the hollow point bullet from a laser-sighted .380 Ruger from the Rick Perry beloved by conservatives.
Michele Bachmann (for whom Bob Heckman, one of this columnist’s partners, is a consultant), Newt Gingrich, and Herman Cain all have positioned themselves to put the life issue into play. If Bachmann pushes it to center stage it could thrust her back into the lead.
What matters next is not style but the issues about which we mere voters care, how intensely, and the candidates’ stands. And voters who live in Iowa, New Hampshire, and South Carolina are five times as potent as the rest of us in the presidential primary.
A candidate who shows the primary voters in three small states that he or she will champion, effectively, their concerns has a secret weapon. Many and probably most Iowa Tea Partiers happen to be as passionate about social values such as the right to life, and classic, as opposed to nouvelle, marriage as about runaway spending. True, too, for South Carolina.
The deck, in other words, is stacked in favor of real, including social conservatives, and against the (vote lite) elite CEO, Country Club, pro-choice Republicans. Until now it has been good enough for a candidate to say that he was against Roe. The voters have taken this as a pro-life commitment. But the ante’s been upped. Will Bachmann take advantage of this?
A small group of public intellectuals has pushed onto the table the question of whether the federal government of the United States ought to provide protection to unborn children as persons under the Fourteenth Amendment to the Constitution. Repealing Roe just sends it back to the States. Real protection comes from honoring the U.S. Constitution’s Fourteenth Amendment, passed to protect former slaves and every other person from being denied equal protection under the law. The Fourteenth Amendment holds that no State may deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. If an unborn child is a person, the federal government is bound to protect her.
This line of thought was precipitated almost 25 years ago by conservative philanthropist and thought leader Lewis E. Lehrman (with whose nonprofit institute this columnist professionally is associated). In 1987 The American Spectator published an influential article by Lehrman terming life an inalienable right. This article later was cited by Clarence Thomas, in whose confirmation hearings it became a factor. The New York Times, in 1991, quoted Thomas as saying: “Lewis Lehrman’s recent essay in The American Spectator on the Declaration of Independence and the meaning of the right to life is a splendid example of applying natural law.” Surely it is, and the article’s influence by no means ended there.
A Fourteenth, not Tenth, Amendment line of thinking long has been propounded by conservative leader and former Gary Bauer presidential campaign manager Frank Cannon (with whom this columnist also has long been professionally associated), attributing Lehrman as the primary source.
A similar line of argument has been brought to the fore by two important natural law proponents, Notre Dame’s Gerard Bradley and Princeton’s Robert George. Prof. George recently founded a nonprofit advocacy group (with which this columnist also is professionally associated), American Principles in Action. Cannon is its president.
George brought up the question during American Principles’ Sept. 5presidential forum. It elicited potentially politically explosive responses.
George: So, given the clear mandate of the 14th Amendment, empowering Congress to enforce the guarantee of equal protection, shouldn’t Congress act on that now?
Bachmann: Yes, I believe that they should. And it is not only Abraham Lincoln that subscribed to that view. Thomas Jefferson did as well…
A clean yes from Bachmann.
George: Now, as someone who believes in the inherent and equal dignity of all members of the human family including the child in the womb, would you as president propose to Congress appropriate legislation pursuant to the 14th Amendment to protect human life in all stages and conditions?
Romney: That would create obviously a constitutional crisis. Could that happen in this country? Could there be circumstances where that might occur? I think it’s reasonable that something of that nature might happen someday. That’s not something I would precipitate.
Romney cops the tenth (as did Paul). Perry, in absentia? A tenth but…
The just repeal Roe position is like that of Stephen Douglas with the Kansas-Nebraska Act. Douglas attempted to finesse the issue of slavery by leaving it to the states. He famously debated Lincoln who tackled the core paradox in his House Divided speech:
A house divided against itself cannot stand. I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved I do not expect the house to fall but I do expect it will cease to be divided.
Lehrman, Cannon, Bradley and George have called the constitutional question. This raises the stakes. Unborn children either are persons or they’re not. If persons they are entitled to protection, under the Fourteenth Amendment. This is not a State option.
Will this scramble the next phase of the GOP primary? It potentially has Lincolnian power. Just call it Bachmann-Lincoln Overdrive.
Originally published September 19, 2011 http://www.forbes.com/sites/ralphbenko/2011/09/19/bachmann-lincoln-overdrive-will-it-scramble-the-gop-race/