A Michigan federal judge and Ronald Reagan appointee held that a federal law banning female genital mutilation is unconstitutional. Many people are focusing on this holding as somehow legitimizing a manifestly barbaric and unconscionable practice. To be clear, U.S. District Judge Bernard Friedman did not suggest that the banning of female genital mutilation is wholly unconstitutional, nor did he condone the practice. He merely said it is constitutionally a matter for the states to regulate, not the federal government.
He’s right. The interstate commerce clause has been expanded so far outside of its original intent that Congress has used it for decades to expand their federal power. Commerce means packing and shipping, the actual transport of goods between state lines. The Founders gave regulation of interstate commerce to the federal government to protect against trade wars and tariffs between states, as Alexander Hamilton recognized in Federalist 11. We are still the United States, and while states have sovereignty, each state is not its own country.
In keeping with the federalist model, Congress only has specific limited power in Article 1, Section 8 of the Constitution, generally when the issue is national or between states. If the states have the power to regulate or legislate on a specific issue, the federal government does not.
Friedman’s holding is the exact same correct legal argument for overturning Roe v. Wade, Planned Parenthood v. Casey, and Obergefell v. Hodges, which the dissents in those cases correctly asserted. Congress does not have the constitutional authority to regulate abortion or marriage, and the Supreme Court in those cases ruled out of activism purely because the majority wanted to legalize abortion and same-sex marriage nationally. Those holdings stripped states of their constitutional authority to determine laws on abortion and marriage.
At the time that Obergefell was handed down in 2015, 30 states had constitutional amendments providing that those states would only recognize marriages between one man and one woman. The 1973 Roe decision imposed a national requirement on the states that is nowhere within the federal government’s constitutional authority. Various levels of abortion regulation have been in place in all states since the early 1900s.
The federal judiciary has no authority to allow Congress to regulate an issue that constitutionally belongs to the states. For these very same reasons, the judge was correct that the criminalizing of female genital mutilation is a state issue. Twenty-seven states have statutes criminalizing it. This judge rightly recognized the limited scope of his federal judicial authority. It is no more appropriate for a federal judge to insert his own policy perspective on this issue that it is for five Supreme Court justices to insert their policy perspectives on same-sex marriage.
It is a good thing that federal courts are increasingly recognizing federalism. It’s incumbent upon the states and the people to recognize that we have more power than the federal government would like us to believe. States can pass their own laws banning female genital mutilation, as Michigan did (according to the AHA Foundation, which advocates for such laws, Michigan has the strongest anti-female genital mutilation law in the country). States did pass constitutional amendments recognizing marriage as between one man and one woman. States have regulated and even outlawed and criminalized abortion (objectively and scientifically, the practice of mutilating and killing an unborn child) and are constitutionally proper in doing so.
When we discuss constitutional law issues, we should be clear. The Constitution requires that powers not granted to the federal government are reserved to the states and to the people. The Constitution should be applied consistently. We must require the federal government to stay within the margins of constitutional authority in every case, regardless of our preferred outcome. We must require our state legislatures to contemplate these important issues and not continue to cede their constitutional authority to an overreaching federal government.
States need to start acting and recognizing their moral obligation to child victims of female genital mutilation and abortion, and states need to step up to recognize as legitimate and valid their constitutional amendments on marriage, and many other issues. Hopefully the new conservative majority on the Supreme Court will take up these important issues and hold correctly and constitutionally the lines between federal and state power.
Jenna Ellis (@jennaellisJDFI) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is Director of Public Policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution. She can be reached at [email protected].
