How elastic can the Constitution be?

By William C. Duncan

With serendipitous timing, this week the online journal Public Discourse published an excellent article by Professor Steven Smith, a law professor at the University of San Diego. In the article, Professor Smith notes that while during the middle period of the Roman Empire, “the outward forms of the ancient republican constitution were largely preserved … these forms were a mere façade.” He quoted Edward Gibbon’s observation that what was left was the “image of liberty.”

How elastic can the Constitution be?
by William C. Duncan

The timing of the article is striking because this week a federal court judge in Utah has ruled that the state’s governor is barred, by the Constitution(!), from declining to have the state serve as a middleman in funneling federal tax dollars to the local Planned Parenthood affiliate.

This may seem like a pointless question when the U.S. Supreme Court has decided it has the power to decide for the states how they will define marriage, but where in the Constitution is the provision that requires states to give funding to Planned Parenthood? Is there really a constitutional right to government funding?

Put another way, how elastic can the Constitution be?

Its Framers might actually have answered that it can be quite elastic but in a very different sense. One of the many elements of real genius in their design was that the Constitution could be changed to address varying circumstances. To this end, they included Article Five, which provides two ways to change the Constitution. In doing so, they wanted to ensure that the Constitution’s true authors, the people, would be involved in the change. Thus, the people themselves must either convince their state representatives to call for a convention to propose amendments or convince their representatives in Congress to propose amendments. Then, these amendments would have to be ratified by the states, again through representative bodies.

Since the Constitution would be the fundamental law of the land, the Framers ensured major changes would be made deliberately. They required supermajority votes both to propose amendments and to ratify them. The two-step process also ensured broad participation in the decision.

In contrast, in our current system, when many would prefer not to follow this cumbersome process, we have acceded to an extra-constitutional process whereby a super-minority of federal judges may make significant changes in the constitutional order.

The “amendments” in this new system are “proposed” by litigants, often recruited for that purpose by activist groups.

Take this new lawsuit. According to news reports, the judge accepted the argument of Planned Parenthood, represented by the attorneys who successfully sued to have same-sex marriage mandated in Utah, that the governor’s decision to stop funding the group deprives them of equal protection of the laws and due process of law guaranteed by the 14th Amendment.

To assess this claim, imagine a different scenario. Imagine a company that contracts with the state to provide weapons used by law enforcement officers. Then, imagine this company was discovered by investigative reporters to be running a human trafficking operation. Would anyone believe that a subsequent decision by a state not to do business with that company somehow violated a constitutional right? How different is this situation?

Executives of Planned Parenthood have been recorded speaking in callous and shocking ways about a callous and shocking business they are engaged in—selling body parts obtained through abortions of unborn children. The governor of Utah has decided, as have other states, that Utah will no longer do business with a company tainted by such practices. (Parenthetically, it would seem that it need not have taken this additional disclosure for the state to know that doing business with an abortion provider was sketchy.)

Now, is it really possible that an organization like this has a constitutional right to public financial support and to have the state of Utah facilitate that support? Such an assertion beggars belief.

It’s even more surprising that a judge would apparently give credit to such an argument.

Reports on the lawsuit portray Planned Parenthood as trying desperately to establish some sympathy by claiming that they are just looking out for the welfare of their female clients and suggesting the governor’s decision hurts these people. Yet the same reports say the contracts at issue have been awarded for STD testing and providing sex education (interesting choice of vendors).

Surely, the state is entitled to find vendors for these projects who are not tainted by their association with practices so fundamentally at odds with basic standards of human decency. Perhaps – novel thought – the education could be done by parents and save a lot of money all around.

For the sake of the rule of law, and indeed for the sake of moral sanity, we can only hope that the judge will rethink this decision or that cooler heads will prevail on an appeal. A right to government funding for Planned Parenthood would make the Constitution unrecognizable.

William C. Duncan is director of Sutherland Institute’s Center for Family and Society.

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