Kamala Harris’ Proposed ‘Reproductive Rights Act’ Is Ridiculous And Unconstitutional

The 2020 Democratic Party presidential candidates have been falling all over themselves, of late, to see who can take the most extreme kid-killing policy position possible. But it seems that intersectional darling and self-flagellating ex-prosecutor Sen. Kamala Harris (D-CA) has jumped out into a commanding lead.

As The Wall Street Journal highlights, Harris' presidential platform will apparently call for a "Reproductive Rights Act that would create a preclearance requirement, meaning states and localities with a history of violating Roe v. Wade ... would have to get approval from the Justice Department for any abortion-related measure to be enforced." The so-called "Reproductive Rights Act" would therefore operate in a similar fashion to the Voting Rights Act of 1965, which similarly inverted federalismin an extra-constitutional manner so as to definitively quash the unique evil of Jim Crow-era franchise infringement of blacks across the American South.

Harris' proposal is misguided and unconstitutional.

Let's start with first principles. Although the Founding Fathers' constitutional enshrinement of a tripartite separation of powers framework was more or less directly adopted from the French political theorist Montesquieu, their creation of a true federalist system of dual spheres of sovereignty was a unique contribution to the Western political theory canon. The states, which created the federal government, assigned to the latter only strictly enumerated powers — for Congress, which was intended to predominate at the federal level, these enumerated powers can be seen in Article I, § 8 of the constitutional text. As both basic constitutional structure and the 10th Amendment both then make clear, the states were to have plenary control over all unenumerated areas of governance that were not expressly delegated to the federal government. As James Madison famously put it in The Federalist No. 45: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

Holding policy merits aside, the Voting Rights Act of 1965 inverted this Madisonian framework. Instead, under the Voting Rights Act, select states and localities were forced to receive the federal government's blessing before implementing any change with respect to voting. The issue with this, from a legal perspective, is that voting in our constitutional order has long been generally understood as a privilegeover which the states have something closely akin to plenary power to regulate — with constitutionally enumerated exceptions, such as those which appear in the 15th, 19th, 24th, and 26th Amendments, aside — as they see fit. Justice Hugo Black explained well the constitutional tensions inherent in the Voting Rights Act in his partial concurrence/dissent in the 1966 U.S. Supreme Court case of South Carolina v. Katzenbach, which upheld the constitutionality of the Voting Rights Act.