Using federal power to achieve your own ends is a dangerous game – playing with fire that will ultimately burn you.

For many years, progressives have supported a wide-reaching, expansive view of the Commerce Clause, empowering the federal government to carry out liberal mainstay programs such as Social Security, Medicare and Medicaid. But advocating for sweeping federal power on issues that you favor can come back to haunt you.

And for progressives, it has.

Case in point: in the Gonzales v. Raich case, the Supreme Court held that growing a medicinal plant in your backyard and consuming it in your home somehow fell under the purview of regulating interstate commerce. Most on the left rightfully oppose federal regulation of marijuana, especially for medical purposes. But they really can’t complain. Their constitutional view made it possible.

You would think those on the political right would understand this and heed the warning. But Republicans in Congress recently introduced a bill using the same reasoning to ban abortions if the fetus is 20 weeks or older. A Washington Post blog elaborates on this development.

The U.S. of House of Representatives is preparing to consider a bill — the Pain-Capable Unborn Child Protection Act (PUCPA) — that would prohibit most abortions performed after 20 weeks from conception. Specifically, the bill would prohibit a doctor from performing (or attempting to perform) an abortion “if the probable post-fertilization age . . . of the unborn child is 20 weeks or greater.” The bill further outlines how the “probable post-fertilization age” is to be determined and contains exceptions for cases of rape, incest involving minors, and threats to the mother’s life.

Whether the PUCPA would pass muster under the Supreme Court’s existing abortion jurisprudence is an open question. The relevant case law is a bit muddled. Under Casey, states are allowed to enact laws that restrict abortion and favor childbirth, but are not allowed to adopt measures that create an “undue burden” on a woman’s exercise of her constitutional right to obtain an abortion. Under this standard, 24-hour waiting periods and prohibitions on specified procedures (e.g. “partial-birth abortion”) have been upheld, but spousal notification provisions have been struck down. Should this sort of law reach the Supreme Court in the near future, the key question will be what sorts of restrictions on abortion Justice Kennedy is willing to tolerate.

Some may see this legislation as a case of turnabout being fair play, and chuckle at the progressives who enabled expansive exercise of federal power throughout the years. But that is a myopic outlook because federal power is something that should never be expanded for any purpose.

When you get in bed with the federal government, there is almost never a positive outcome for freedom in the long run. When you expand federal power to achieve your own ends, you are actually empowering your opponents by providing legitimacy for their efforts to expand power. Instead of limiting power, you are just creating a political wrestling match for control over an ever expanding more powerful government. It destroys the Constitutional system.

If we all keep going to the federal government and begging it to take more power on this issue or that issue, we enable future power-grabs we may not want. We provide it with legitimacy. We cede power that should be held by states and individuals and giving it to unaccountable federal bureaucrats. This is what has put us in our present dismal situation. Demanding more of the very thing that is the problem only takes us further down the path toward complete federal control over everything.

We are all too often polarized, divided into two opposing camps, and pitted against each other in a paradigm that always seems to give the feds more power. On this abortion issue, we see this familiar scenario repeat itself yet again. Both sides are playing their role in a false dichotomy. We have to realize that unlawful federal power is a greater threat to our freedom than any other crisis that is facing us.

That doesn’t mean there shouldn’t be federal laws on the books pertaining to abortions, health care, a social safety net, or anything else. However, federal control over these things must be avoided whenever possible. Not just because the feds have shown no ability to create lasting solutions in spite of their many attempts to do so, but also because it’s completely unconstitutional. The Constitution must take precedence over political convenience.

We cannot merely pick and choose to obey the Constitution based on our whims. We must follow it every time on every issue with no exceptions and no excuses. That is what our country has gotten away from, and it has hurt us immeasurably. We should be fighting the overly-expansive notion of ‘Interstate Commerce’ re-defined by the robed lawyers at the Supreme Court in contradiction to the intent of the Founding Fathers, not using the erroneous concept to increase federal power on our pet issues.

We must never fall into the federal trap. We must never play their games, no matter how alluring they may seem. We must work to nullify federal power, not work to expand it. Let’s take back control of our communities at the local and state levels. Let’s spur action to resolve issues there, not in Washington D.C. where corruption and malice runs so rampant.

Outsourcing our power to monolithic federal bureaucrats hasn’t worked thus far, so why should we think that it would work on abortion? Stooping to the level of the federal supremacists only makes us lose the moral high ground. We must strive for consistency when it comes to defending the Constitution. Otherwise, it’s subversion will continue and our rights will be lost forever.

NOTE: Mike Maharrey contributed to this report

The 10th Amendment

“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.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


Maharrey Minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.