Uh-uh. What makes you think Congress has the power to dictate who is alive, and who is human?
~Max
They have the power to create law and codify the parameters of those laws. That is their function.
Article I, section 1.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
The implication (expressio unius est exclusio alterius) is that there are legislative powers other than the ones granted in the Constitution, and that Congress is not vested with such powers. That is to say, Congress does not have plenary legislative power, and cannot pass any law unless the Constitution grants them the power to do so in a different provision than the one cited above. This is made explicit by Amendment X,
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So I ask you again, can you point to a provision that grants Congress the power to dictate who is alive, and who is human?
~Max
I’ll take a stab at it.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Since the Fifth Amendment specifically mentions life not once, but twice, it seems to me (and granted, IANAL) that “life” can be defined, just as terms like “due process” and “just compensation” can also be defined.
Without going through the whole Constitution it should be clear that it represents the rights of people.
As an example, the 14th Amendment says “nor shall any state deprive any person of life, liberty, or property, without due process of law”
Defining life seems front and center to the entire Constitution.
I don’t see where it defines “liberty”, even though that word is used right next to every time that the word “life” is used.
I wonder if it would have made more sense to rule for the right to reproductive freedom under “liberty” rather than privacy.
Right now, nothing can be done legislatively. We have 2 Democrats who will not change the filibuster even for a single issue. What can be done is to make this an issue for the midterms. With the great majority of Americans opposing the overturning of Roe, this can and should be a winning issue for Democrats. It’s no longer a foregone conclusion that the GOP wins the House. Democrats can certainly pick up a Senate seat in PA and possibly OH and WI as well. Republicans did Democrats a favor by nominating someone completely clueless in GA. So getting 50 real Democrats plus Manchin and Sinema is a possibility. In 2024, Sinema can be primaried and AZ is much purpler now than it has been historically, so getting a real Democrat in AZ is a possibility and if Donnie is on the ballot then Democratic turnout will be astronomical. This is what’s possible. What isn’t possible is passing any legislation now.
Roe got overturned because for nearly 50 years, those who opposed it made it their sole criterion for voting. Republicans took advantage of that and won many elections that they otherwise would not. Now the tide has turned, more people are in favor of abortion rights, and they need to take every election seriously and vote as if their lives depend on it.
The constitution enables Congress to pass laws protecting the rights of persons, implicit to that is the ability to define what a person is. Things like the 13th Amendment, and 14th Amendment, not to mention actually a huge plethora of economic laws are tied into whether someone is alive or not. The concept of estate taxes for example couldn’t exist if the Congress wasn’t able to make some legislation directed towards people based on their status as alive or dead.
@Magiver’s larger point however is not accurate. Even if we firmly establish, be it through legislation, judicial ruling or even constitutional amendment, where personhood begins in fetal development, there is a corpus of legal rulings including cases like Gonzales v Carhart (which the Republican Justices ruled on in the early 2000s) that make it fairly clear that they actually recognize both the Federal and State government’s authorities to protect fetal life, which dodges the concept of personhood as a decider of the abortion matter. While some cases got overruled with Dobbs in part, it is unlikely to me that the current court would suddenly find that say, the Partial Birth Abortion Ban (the Federal law it upheld in Gonzales) is no longer valid, and part of that ruling rests on the view that the government can protect not just persons but fetal rights a well.
Congress doesn’t have the unilateral power to enact binding interpretations of Constitutional language. Ambiguous constitutional language gives rises to cases and controversies which are explicitly within the purview of the judicial, not legislative power. See Article III sections 1 and 2.
That is to say, even if Congress did pass such a law, the Supreme Court would simply rule that it isn’t binding unless narrowly restricted to a law affecting “life” that Congress does have the power to pass. For example, if Congress wants to reduce income taxes for families, it has that taxing power (under Amendment XVI) and is free to write the law in such a way as to define “life” or “human” so as to exclude unborn. But this definition in tax law wouldn’t affect constitutional law; it wouldn’t be binding against the States when they try to pass a State homicide statute that defines “life” or “human” so as to include the unborn.
Does that make sense?
~Max
This isn’t quite correct. You start off correct–Congress does not have unilateral power to enact binding interpretations of constitutional language. But then you go on to say it is the “purview of the judicial, not legislative” power to clarify ambiguous language. This is where you are incorrect. Both branches, and in fact even the executive, have power to clarify and interpret ambiguous language. The judiciary has authority to issue binding precedent that the other branches are typically at least somewhat bound to respect (although some of that is based on custom not the constitution.) But not every interpretive matter can easily be brought before a court, and many that are the courts will defer to Congressional interpretation. It is an area of law in which all branches wield power, in a narrow sense the judiciary has the final say when the matter is brought into the court system, but that itself is just a subset of how government power works and is effected.
This is true but not special for definitional statements in laws. All laws that Congress pass have to be based on established lawmaking powers of congress laid out in the constitution, the ability to define words is never an “end run” around that, but it is part of how congress can and does regularly legislate.
FWIW Congress has already defined life under 1 USC Sec 8 for purposes related to “Federal rulemaking and other Acts of Congress.”
Any Federal law intended to bar State action has to be justified under the constitutional grants of authority for Congress to supercede the States, of which there are several. The law would have to be justifiable on those grounds at core, the issue of defining words would not ultimately be the final arbiter of that in most foreseeable scenarios.
Congress has pretty broad power to establish personhood for a number of legal purposes and has enjoyed that right and been affirmed in it a number of times. The main issue is this doesn’t really open an easy door for Federal legislation that prohibits States from prohibiting abortion, as Magiver suggested it would.
I’m not saying there is no way to craft a Federal law that would block (at least some aspects) of State regulations over abortion, but simply asserting that life begins at 15 weeks and thus life before 15 weeks cannot be protected by the States would be very hard to square constitutionally–and even if you could, it would still be a problem that the courts have already upheld that both States and the Federal government have a vested interest in protecting “fetal life”, a term specifically designed to refer to a pre-born human without weighing in on whether that life is a person or not. So even if things went how Magiver suggested they could go, the power of States to protect fetal life would still be difficult for such a scheme to overcome via Congressional legislation.
I apologize, I meant the power to resolve any cases or controversies arising from differing interpretations of the Constitution falls under the judicial power. The assertion I was countering was that Congress has the power to dictate who is and isn’t alive, binding upon States who wish to consider unborn children live humans for the purposes of prosecuting homicide, simply by virtue of the word “life” appearing in the Fifth Amendment. But the Fifth isn’t a grant of power, and without a grant of power it won’t be recognized by the courts as carrying the force of law.
Besides, the judicial power covers this exact situation (a controversy between the State and Congress over the meaning of some words in the Constitution) so the notion that this would be an end run around the Supreme Court’s hostility to abortion is flawed.
~Max