Despite the procedure’s moral repugnance and our emotional reaction to it, a federal court got a female genital mutilation case right when it struck down a federal law banning the practice. The Constitution does not authorize the Congress to pass such a law.

In what has been criticized as a “major blow to the government,” U.S. District Judge Bernard Friedman struck down a federal law prohibiting female genital mutilation (FGM). When I first read the headlines, my initial thought was that he did so on grounds of “religious freedom.” I was pleasantly surprised to see that he based his opinion on the correct reasoning that Congress lacks the Constitutional authority to pass such a law in the first place.

Two Michigan doctors and six others were charged last year when they arranged to have the procedure performed on nine girls. Four were brought to Michigan from Illinois and Minnesota. According to the New York Times, the families involved belong to the Shiite Muslim sect known as Dawoodi Bohra, originally from western India. The resulting prosecution is the first time the procedure has been challenged in a criminal court of law in the United States. The court of public opinion issued a verdict of “guilty,” regardless of the lack of constitutional authority for the federal court system to even hear the case.

When it comes to criminal acts, the states delegated the general government the authority to punish three crimes: piracy on the high seas, counterfeiting and treason. Those powers not delegated to the general government were reserved to the states. The Tenth Amendment reads as follows:

“The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”

What surprised me was the negative reaction to this correct ruling by so many folks who, on a normal day, have shown themselves to be staunch defenders of limited government and state sovereignty. I’m not saying that FGM is anything but a barbaric and repugnant procedure, nor am I ignoring the intent behind the procedure, which is to keep females from enjoying in sex, or, according to a caller when I was discussing this issue on a radio show, to “keep women from running around acting like animals.”

I am writing about this issue because it is a perfect example of the importance of objectivity and consistency when discussing such issues and whether or not it is constitutional for the federal judiciary to address them. Again, according to the Constitution as ratified, this matter, regardless of how it makes us feel, is properly left to the states. And the states have the complete ability to deal with the situation as they see fit within their jurisdictions.

By taking this issue to the federal judiciary, and ultimately the United States Supreme Court, we run the risk of taking away the states’ lawful authority to criminalize it in the long-run. Imagine a SCOTUS decision striking down not only federal but all state laws criminalizing female genital mutilation as an unconstitutional violation of the First Amendment “right” to practice one’s religion without fear of government reprisal. This is an entirely plausible outcome. The result would be a nationwide ban on criminalizing FGM.

Think that’s impossible? States are already banned from criminalizing human abortion, regardless of what their citizens think; the matter has been co-opted by politically-connected lawyers in black robes.

By turning to the federal judiciary to deal with issues that have not been delegated to it, states and their citizens are surrendering the very sovereignty the Constitution’s framers and ratifiers did their best to ensure would endure. The Constitution was created to prevent a top-down tyrannical system of government from subverting the rights of the sovereign and independent states; in fact, they went to war to escape that very system of government. Allowing nine lawyers to determine social policies intended to be decided by the states is in direct contravention to our founding principles. Ultimately, this is a loss of liberty even when the outcome appears to be positive. If we wish to keep these founding principles of limited federal power, consistent thought must never be trumped by emotionalism. To do so will be to surrender our revolutionary legacy.

Suzanne Sherman
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