so it essentially ratifies, or acknowledgesrnthe legitimacy of, the many usurpationsrnof states’ rights that the Court has imposed.rnSince the 1920’s, and especially sincernthe Warren era, the Court has relied uponrnthe fiction that the 14th Amendmentrn”incorporates” the restrictions on thernfederal government contained in the Billrnof Rights and allows the Court to strikerndown anv and all state and local laws thatrnmeet with its displeasure. The flaws ofrnthe “Incorporation Doctrine” have beenrnrelentlessly exposed by Raoul Berger andrnothers, but that has not prevented thernCourt from using it as a weapon to strikerndown state laws governing obscenity andrnsubversion, racial and religious discrimination,rnsexual misbehavior, and votingrnpractices, as well as laws against abortion.rnThe result of the Incorporation Doctrinernhas been the political triumph ofrnmodern liberalism through illicit judicialrnenactment or repeal of laws that couldrnnot have been enacted or repealedrnthrough democratically controlled legislativernprocesses at state or federal levels.rnEad Warren’s admirers occasionally arernbold enough to acknowledge this. As liberalrnlegal historian Paul Murphy writes,rnWarren “utilized the judiciary as a constructirne policy-making instrument” andrn”intent more upon social ends than uponrnlegal sul)tleties and refinements, andrncandidly prepared to say so, he hadrnpushed the nation, through his Court’srnlegal rulings, to take public actions thatrnCongress was unprepared to recommendrnand the executive was incapable, unilaterally,rnof effectively securing.” ButrnCongress was “unprepared” and the executivernwas “incapable” for the simplernreason that, unlike Justice Warren andrnhis colleagues, their occupants had tornface the inconveniences of elections, andrnfor all the high art and science of foolingrnsome of the people some of the time,rnthere are limits to how effectively thisrncan be practiced by elected lawmakers.rnIt is through the opacity of the languagernof the 14th Amendment that thernCourt invented a “right to privacy” in itsrn1965 Crisvvold decision and not longrnafterwards used that fabricated right tornlegalize abortion throughout the 50rnstates in Roe v. Wade in 1973.rnThe strategy of the Human LifernAmendment does not operate throughrnthe Incorporation Doctrine, but it doesrnrely on the expansive power granted thernfederal government in the first section ofrnthe 14th Amendment and is of a kindredrnspirit with the doctrine, a spirit definedrnby the conviction that the states andrntheir voters are on no account to be trustedrnand that any curtailment of theirrnpowers and liberties by federal mechanismsrnis a progressive step. While thern14th Amendment clearly denies statesrnthe power to deprive persons of life, liberty,rnand property without due processrnand gives Congress power to enforcernthese rights, it is a serious error for conservativesrnto rely on the 14th Amendmentrnto restrict the rights of the statesrnstill further, even for so holy a cause asrnending abortion. But that is exactly whatrnthe HLA proposes to do. In doing so, itrnwould not “restore” much of anythingrnand certainly not the constitutional federalismrnthat prevailed prior to Roe andrnprior to the Incorporation Doctrine, butrnit would make use of federal power tornimpose a uniform rule on the states thatrnanti-abortion forces happen to applaud.rnPrior to the Roe decision, two statesrnhad legalized abortion through legislativernacts, and a few others had begun revisingrntheir laws prohibiting it. This wasrnfully in accordance with federalist usages,rnand the result, had the usages beenrnallowed to continue, would probablyrnhave been a diverse set of state laws thatrnsometimes forbade, sometimes permitted,rnand sometimes merely restrictedrnand regulated abortion. That result,rnwhile not to the taste of anti-abortionists,rnwould have been perfectly in accordancernwith the way in which the Constitutionrnintended the country to be governed,rnand that, not the complete extirpation ofrnabortion through the further extirpationrnof the rights of the states, is the end tornwhich serious radical conservativesrnshould work.rnBy relying on the Human LifernAmendment, the anti-abortion partyrnwill contrive not only to allow abortion tornpersist unabated but also, in the unlikelyrnevent the amendment is ever adopted, tornrely on the very same expanded federalrnpower that lies at the base of liberal dominance.rnEven if the amendment neverrnpasses into law, by invoking it as the principalrnremedy for abortion, anti-abortionistsrnwill bind themselves to the illicitlyrnexpanded federal power created by misusernof the 14th Amendment. Rallyingrnaround the HLA, in other words, willrnlock the American right into support forrnthe very federal leviathan and its pseudoconstitutionalrnfoundations blocking thernright’s agenda in the first place.rnWhat Republicans, conservatives, andrnanti-abortionists should do is rid thernplatform of the Human Life Amendmentrnas now written and craft another,rnone that, while expressing abhorrence ofrnabortion and affirming that the fetus is arnhuman being, also takes aim at the rootrnof liberal dominance, the IncorporationrnDoctrine itself. The party also shouldrndraft and adopt as a principle of its platformrna specific affirmation of the states’rnrights guaranteed by the Ninth andrnTenth amendments, and it should commitrnitself and its standard bearers to workrnfor the restoration of those rights.rnIn doing so, the Republicans wouldrnreach to the roots of liberal power andrnpull them up. They would thereby rescindrnRoe V. Wade, abolish the courtcreatedrn”right” to an abortion, allow thernstates to settle the issue in accordancernwith what the citizens of the states andrntheir norms demand, and effectively endrnthe abortion issue as a national politicalrnissue. They would also reach far beyondrnthe abortion issue itself to all other instancesrnin which the political left hasrn”utilized the judiciary as a constructivernpolicy-making instrument” and, in arnword, restore the Constitution and thernstate and local authority that the Constitution’srnfederalism recognizes. Finally,rnby allowing states to decide for themselvesrnwhether abortion should be legalrnor not, they might even succeed in abolishingrnabortion in some, maybe evenrnmany, states. That in itself is a bit morernthan the Human Life Amendment hasrnever accomplished or seems likely to accomplish.rnOf course this will not happen. Therernare few in the Republican Party todayrnwho even understand what real federalismrnis, and the preferred Republicanrnremedy for the handful of illicit usurpationsrnby the courts to which they objectrnat all is to support still more expansion ofrnfederal power. For a party that thinks onlyrnof winning elections and getting therngovernment and the public purse into itsrnpaws, reducing federal power holds norncharms, and for the new abolitionistsrnwho demand the national imposition ofrntheir own moral obsessions through centralizedrnpower, federalism is simply thernwork of demons. Americans who wantrnsomething resembling the old Constitutionrnwill be more likely to find it on thernreruns of 1950’s sitcoms than in anythingrnthe Crand Old Party proposes.rnAUGUST 1996/35rnrnrn