Bachmann’s Constitutional Flameout

At yesterday’s Republican candidate forum in South Carolina, Princeton professor Robert George, drafter of the religious right manifesto the Manhattan Declaration and founder of the American Principles Project, befuddled the participants with a line of questioning about abortion and the 14th Amendment to the Constitution.

Michele Bachmann, who has a law degree and is an old hand in anti-abortion politics, looked genuinely confused by George’s line of questioning. That’s because George was proposing not merely the appointment of anti-Roe justices to the Supreme Court. He wasn’t just proposing a Human Life Amendment to the Constitution. Rather, George was raising the 14th Amendment as a vehicle for Congress to pass legislation that would confer equal protection under the law to fetuses, much like the civil rights laws conferred protected status based on race, sex, and other factors.

Here’s George, questioning Bachmann (transcript via CNN):

ROBERT GEORGE, PROFESSOR, PRINCETON UNIVERSITY: Would you as president propose to Congress appropriate legislation pursuant to the 14th Amendment to protect human life in all stages and conditions?

BACHMANN: Yes, I would. I would put forward a human life amendment.

And, at the same time, I would do everything within my power to restrict the number of abortions that occurs in the United States. Perhaps no other federal law has done more good for prohibiting abortion than the Hyde amendment. And I would do everything I could to keep out the taxpayer funding of abortion.

Bachmann is reading George’s question as being one about a constitutional amendment — a Human Life Amendment favored by many anti-choice activists. And he’s not just talking about denying federal funding for abortion, which is what the Hyde Amendment does. He pressed on (emphasis added):

GEORGE: Can I follow up?

BACHMANN: Yes.

GEORGE: Because, as I say, some people believe that a constitutional amendment would be needed to overturn Roe vs. Wade, and short of that, the best we can do is put some limitations around the edges and prohibit federal funding, as we have done in the Hyde amendment.

But my question goes to a matter of constitutional principle concerning the respective rules of the government. President Lincoln famously said in his first inaugural address that if we permit the policy of the government on matters that are essential to the whole people to be determined simply by the Supreme Court, we will have abdicated our responsibility, handed over self-government to that eminent tribunal, as Lincoln said.

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…

What Bachmann is getting at here is the separation of powers; she’s aiming at the religious right antipathy toward what activists disparagingly call “activist judges” who “legislate from the bench,” a sin conservatives apply most frequently to the pro-Roe justices, or to judges who have deemed anti-gay marriage laws to be unconstitutional. Congress should act, Bachmann was saying, but it wasn’t clear from her answer that she fully understood what George was asking it should act on. To be fair, neither did any of the other candidates, since what George appeared to be proposing was a civil rights act protecting fetuses, which hasn’t really become part of the litmus test lexicon. Perhaps George should have had Rep. Chris Smith on hand, who once suggested creating a protected class of citizens based on “immaturity.”

George then switched gears to ask about whether the religious conscience of foster care providers should be respected if they receive government funding but refuse to place children with same-sex couples. “I believe in equal protection under the law,” Bachmann replied, as if she had internalized George’s equal protection fixation, but then applied it to the wrong situation. Then George asked her about whether, in addition to her claim that the individual mandate in the federal Affordable Care Act is unconstitutional, she believes that state mandates for health insurance are unconstitutional. And she insisted yes, but she wasn’t sure why. 

BACHMANN: That is correct. That is correct. I believe it is also unconstitutional…

UNIDENTIFIED MALE: Thirty seconds.

BACHMANN: … for states to mandate as a consideration of citizenship, a condition of citizenship, that an individual would have to purchase a product or service, even at the state government’s behest.

GEORGE: And do you believe that the national Constitution forbids states from doing that?

BACHMANN: I believe that it’s inherent in the Constitution.

GEORGE: In the national constitution?

BACHMANN: Yes, I do.

GEORGE: So to say it’s inherent sounds like there’s not a particular provision you can point to?

BACHMANN: Well, I’m sure you could enlighten me as to that provision.

(LAUGHTER)

GEORGE: Well, I wanted to know what the provision was.

UNIDENTIFIED MALE: Thank you very much, Representative Michele Bachmann. Thank you very much.

BACHMANN: Thank you. Thank you, all. Thank you. Thank you for the questions. Thank you. Thank you.

(APPLAUSE)

This morning Bachmann’s campaign revealed the loss of two high-level staffers, most notably campaign manager Ed Rollins, who is moving to a position of “senior advisor” because, both he and the campaign claim, health concerns.

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