Marcia Hamilton, the Stupak Amendment, and Constitutional Mayhem
By: Jim Byrd
My interest was piqued by the title of the article, Why the Stupak Amendment to the Healthcare Reform Bill is Unconstitutional, by Marcia Hamilton. Assuming the title was surely a play on words, as the title is nonsensical in nature, and even within the confines of the mildly learned, the Stupak Amendment was the only component of the health care reform bill that could remotely be construed as constitutional, I settled in for an au courant display of constitutional prowess. The author, Professor Marci A. Hamilton, according to her profile, holds the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, where she is the founding Director of the Intellectual Property Law Program. She has been a visiting scholar at Princeton Theological Seminary, the Center of Theological Inquiry, and Emory University School of Law.
She is frequently asked to advise Congress and state legislatures on the constitutionality of pending legislation and to consult in cases before the United States Supreme Court.
I was intellectually and emotionally prepared for another constructionist to argue the unconstitutionality of the health care bill that skulked its way out of the House of Representatives late on a Saturday evening. But Professor Hamilton circumvented logic and my apparently ill conceived augury of anticipated constitutional sagaciousness. Professor Hamilton argued her vacuous case with three points of contention: 1) the Stupak Amendment violated the establish clause of the 1st Amendment by breaching the separation of church and state, 2) the amendment violated the Equal Protection Clause of the 14th amendment by discriminating on the basis of gender, and 3) the amendment violated the due process and privacy rights that the Supreme Court employed with Roe v. Wade. These three arguments tested the very limits of an elastic imagination, and summarily failed. After reading the article in its entirety, a line-item critique was demanded.
Sans a gentle and gradual introduction, the inculcation starts immediately in the first paragraph:
The United States Conference of Catholic Bishops registered a major victory this week, when it succeeded in pressuring members of the House to include in the healthcare reform bill the so-called “Stupak Amendment.” The Amendment is a provision that carves out new territory for those organizations and persons who oppose abortion — virtually all of whom are religiously-motivated.
She played the â€œso-calledâ€ card on the Stupak Amendment, then emasculated its validity by imprisoning it within sanitizing quotation marks. The last sentence erects a wall between the religious, the secularist, the paganist, and the atheist, with the impenetrable wall being the advocacy of killing a child in the womb (non-religious), or preserving a human life in the womb (religious). After digesting the first paragraph, the ensuing remains of the article’s ability to make a clear and astute constitutional argument, on any point, is in grave peril from the aberrant postulations of the author.
That law, known as the Hyde Amendment, has forbidden federal spending by Medicaid on non-therapeutic abortions since 1976. There have been times in recent history when no abortions could be federally-funded, but at this point a few circumstances permit federal funding, including a pregnancy deriving from incest or rape, or a threat to the life of the pregnant woman. Despite its burden on women’s rights, the Hyde Amendment has been upheld in a series of Supreme Court cases, including Maher v. Roe.
An illumination of Professor Hamilton’s consternation with the Hyde Amendment manifests in her angst with the Stupak Amendment. A clear picture has developed that shows her penchant, after apparently reading the Stupak Amendment, for broad and unfettered abortion on demand, and a bizarre and fantastical intertwining of the Stupak Amendment with the separation of church and state for relief. With the Stupak Amendment at least six degrees removed from the outlandish possibility of any reasonable assumption that it could be construed as establishing a religion, it is apparently a burr under Hamiltonâ€™s saddle.
The Health Care Reform Act in the House had included a compromise provision that recognized the Hyde Amendment principle, but did not extend the prohibition to the funding of abortions through private insurance plansâ€¦. This is a remarkable attempt to overreach into the private sphere, and to force all Americans’ health care plans to reflect the religious beliefs of one subset of Americans.
While Professor Hamilton is gnashing her teeth with angst over the stoppage of using taxpayer money to fund abortion on demand, she seems to be oblivious that the House’s health care bill is the federal governmentâ€™s total annexation of health care, and thus renders all health care government controlled and, at best, quasi-private. Her remark regarding the attempted overreaching into the private sphere is legitimate; ergo, to be honest, she would have stated that the entire health care bill is the unprecedented overreaching into the private sphere. Her obtuse statement that the health care plan will reflect the beliefs of one subset of America by limiting abortion highlights her gross negligence and unstable physiognomy when dealing with facts. One subset? Does 77% of the U.S. population qualify as one subset? The results of a Gallup Poll conducted in 2008 concluded that 77% of Americans identify with the Christian religion. What does she say about morality and atheism? Is this Professor Hamiltonâ€™s unintentional argument that morality is limited to that subset of 77% of the U.S. population? Is she stating that preventing the killing of a child in the womb is a morality that is intrinsic only to a belief in God? Has she identified atheists as immoral for belonging to the remaining 23%?
At this point, it appears unlikely that the Stupak Amendment will survive the healthcare reform battles in the Senateâ€¦. They fully intend to use the federalization of healthcare to further their religious agenda.
To Professor Hamilton’s credit and visage, it is very unlikely that the Stupak Amendment will survive in the Senate. Consider that it would be unprecedented for a House bill to hit the Senate floor, but then again, this is the Reid-Pelosi-Obama carnival, and anything could happen. Harry Reid gets an abysmal 29% from NARAL, the radical pro-abortion syndicate, thus labeling him with a pro-life voting record in the Senate. The bill currently being debated in the Senate, with Reid’s support, bans federal funding for abortions. If not tightened further to include subsidies to buy insurance, a filibuster threat looms. The prospects that a bill will come out of the Senate with taxpayer funded abortions are abysmal at best. If not for the Stupak Amendment banning federal funding of abortions, the House bill would have been DOA shortly after hitting the floor for a vote, with approximately 40 Democrats voting against the bill. It would be wise for Professor Hamilton to acquire some knowledge about what Americans believe. For the first time since Gallup starting polling pro-life and pro-choice in 1995, this is the first time the majority of Americans call themselves â€œpro-life.â€ 51% pro-life and 42% pro-choice.
And again with the reference that morality comes from Christianity. Hamiltonâ€™s argument equates that Christian = saving unborn babies, and non-Christian = killing unborn babies.
That is a shame, because under any reasonable reading of the Constitution, the Stupak Amendment is unconstitutional: Indeed, it violates three different constitutional principles.
While Professor Hamilton’s assertions have her embedded neck-deep in an ideological v. factual antipodal bog, she harbors the fantastical belief that the Stupak Amendment comes from a â€œreasonable readingâ€ of the Constitution; a third way into her invective, she has littered the constitutional landscape with incongruous delusions thus far.
How the Stupak Amendment Violates the Establishment Clause
First, the Amendment violates the Constitution’s separation of church and state. The anti-abortion movement is plainly religious in motivation, and its lobbyists and spokespersons represent religious groupsâ€¦. This is a brazen and frank attempt to impose a minority’s religious worldview on the entirety of American healthcareâ€¦. (A majority of Americans have favored a woman’s right to choose for many years.) There is no secular purpose for the extension of the Hyde Amendment to all private health insurance plans as well. Accordingly, whatever secular purpose might be devised by those trying to defend the Stupak Amendment in court would be a sham purpose, intended to cover the frankly religious pandering the Amendment represents.
A reasonable reading of Professor Hamilton’s assessment: By not funding abortion with taxpayer money because religious groups who conspicuously do not have a vote Congress support the bill, the Stupak Amendment is, therefore, as the authors of the 1st Amendment were trying to prevent, nothing short of the Congress literally establishing a national religion. Her argument, if applied broadly across the legal spectrum of the U.S., would leave the constitutionality of all laws at the mercy of the motivation behind the laws rather than the legitimacy of the laws. And if one of a secular persuasion defends the amendment, perhaps for its constitutionality, then it must be a sham.
Again, Professor Hamilton refers to Christianity, with which 77% of the population of America identify, as a “minorityâ€™s religious worldview.” She clearly suffers from the affliction, current pollaphobia, as currently 51% of Americans call themselves â€œpro-life.” Again, she equates being secular with abortion, and being religious with saving lives.
The principle was articulated by the framer of the First Amendment, James Madison, in his important work “Memorial and Remonstrance” and it has been a mainstay of Establishment Clause doctrine. The Stupak Amendment violates this principle by imposing on the entire country a religious worldview that millions of Americans do not share.
Professor Hamilton’s conclusion is accurate in that James Madison penned the Memorial and Remonstrance against Religious Assessments in 1785. The accuracy ends there. Why did Madison write it? The answer is converse to Professor Hamilton’s reckless conclusion. Hamilton penned the Memorial and Remonstrance in opposition to a bill introduced into the Virginia legislature by Patrick Henry to pay pastors with taxpayer’s money. Hamilton’s passionate remonstration was written out of fear for the church. Madison’s contention was that having the church on the government dole would make it dependent on the government, and this would be poor policy and would create an apathetic and ineffective church. Madison’s intent was to protect the church from the government, and not to protect the government from the church, as Professor Hamilton asserts. This manifested itself in the 1st Amendment: to protect the church from the government and to prevent a church-state from being established by the government. Considering Madison’s references to God as the Creator, Governour of the Universe, and Universal Sovereign in each paragraph, and for any man to be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe, it would only require the skills of a neophyte gumshoe to distinguish that the intent of Madison’s Establishment Clause and Professor Hamilton’s analysis of the Establishment Clause do not share the same substance. Madison and the other Founders had a profound fear of the government defiling Christianity. Yes, Christianity. In this excerpt, which is contextual to the entire document from the Memorial, Madison conveys his thoughts about the non-Christians of the world who have yet to be saved:
Because the policy of the Bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions; and how small is the former! Does the policy of the Bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of revelation from coming into the Region of it; and countenances by example the nations who continue in darkness, in shutting out those who might convey it to them. Instead of Leveling as far as possible, every obstacle to the victorious progress of Truth, the Bill with an ignoble and unchristian timidity would circumscribe it with a wall of defense against the encroachments of error.
Christianity was so revered by Madison that its entanglement with government would only lead to corruption if forced into a slave/master relationship with a government. The Establishment Clause was created for one simple reason, and when goaded with common sense and a cursory understanding of the intention of the authors of the 1st Amendment, it was created to shield religion from the government.
Thomas Jefferson did not create the phrase â€œseparation of church and stateâ€ as an isolated declaration. The phrase was parenthetical to the body of a letter Jefferson penned to the Danbury Baptists in 1802.
…believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State….
Jefferson then qualified his separation statement: “The wall of separation between church and state is the best method to keep religion free from intervention by the federal government, government free of religious disputes, and religion free from corruption by government.”
Jefferson’s actions assuredly validated his words. He used treasury funds to build churches, granted churches land, and funded the salaries of Christian missionaries, etc. If he truly believed in the â€œseparation of church and stateâ€ as perceived by the Leftist usurpers of the Constitution, then he wantonly violated his own policies for the entirety of his tenure as president.
Why has Professor Hamilton not set her sights on the apparently unconstitutional Civil Rights Act of 1964? Hubert Humphrey, commenting on how the act was passed, stated, â€œWe needed the help of the clergy, and this was assiduously encouraged. I have said a number of times, and I repeat it now, that without the clergy, we couldnâ€™t have possibly passed this bill.â€
How the Stupak Amendment Violates the Equal Protection Clause
The Stupak Amendment also discriminates on the basis of gender. Only women have to deal with the difficult question of abortion. Conspicuously missing are parallel exemptions barring funding for Viagra, or for, say, prostate surgery treatments, which can leave a man sterile and therefore operate as a birth control measure.
Professor Hamilton’s equivocation of “prostate surgery treatments” to male birth control has, at this point in her article, relegated her to the bowels of abject ignorance, and her philippic starving for authenticity and factualness. Generally, when a male has “prostate surgery treatment,” his prostate is removed because it is cancerous. This generally leaves him sterile, but so does the barring of funding for the surgery, as Professor Hamilton suggests, since generally all men left to die of prostate cancer become sterile after death, the ultimate birth control measure. This is an interesting parallel, nonetheless, since untreated ovarian cancer in women can lead to birth control measures through death also. I am certain that the majority of obstetricians would find it interesting that Professor Hamilton, via her parallel, has diagnosed pregnancy as a type of sexual dysfunction.
How the Stupak Amendment Violates Substantive Due Process and Privacy Rights
Finally, the Stupak Amendment attempts to curtail — across the board â€“ the privacy rights that Roe v. Wade and its progeny secured for women…. The Stupak Amendment is also a harbinger of future constitutional violations, for it erects a slippery slope of top-down control of the spectrum of healthcare options…. There is no more obvious violation of Griswold v. Connecticut â€“ which established that laws prohibiting contraception are unconstitutional under the Court’s right-of-privacy doctrine — than for the federal government to reduce the affordability and, therefore, the availability of contraceptives for all Americans.
What branch of reason did Professor Hamilton employ to parse out the Stupak Amendment for the “slippery slope of top-down control of the spectrum of healthcare options,” when the entire bill is top-down control of America’s health care system? Professor Hamilton uses, as do most Leftists, defective case law that suits her agenda; Roe v. Wade and Griswold v. Connecticut are always touted as legal absolutes when defending abortion. In Roe v. Wade, the Burger Courtâ€™s decision stated that abortion was a fundamental right under the 14th Amendmentâ€™s right of privacy; the opinion was written by Justice Harry Blackman, who penned,”…whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.” To accept this, one would have to assume that Roe v. Wade was a federal issue, a constitutional issue, and accept that the ruling was based on a valid constitutional foundation; and to accept this, one would have to disregard the intent of the author of the 14th Amendment, John Bingham, and the Congress that ratified it. Binghamâ€™s first 14th Amendment was rejected by the Congress as it would have given the federal government jurisdiction over the individual liberties of the American people. Bingham stated this about his 14th Amendment: “The Constitution of the United States is one of limited and expressly delegated powers which can only be exercised as granted, or in cases enumerated.”
Professor Hamilton has also been dealt an interesting dichotomy: The Reverend Carlton Veazey, president and CEO of the Religious Coalition for Reproductive Choice, has stated, regarding the Stupak Amendment, â€œDonâ€™t let anybody tell you that religious people donâ€™t support choice. You not only have a constitutional right for abortion, but you have a God-given right.â€ When dealings of the abomination are about, Rep. Rosa DeLauro, Democrat, and Diane Feinstein, Democrat, will not be excepted. DeLauro called the Stupak Amendment â€œa stain.â€ She stated to pro-abortion activists that she wants legislators to â€œfeel your wrath.â€ CNSNews.com asked Feinstein: “Is it morally right to use tax dollars from pro-life Americans to cover insurance plans that cover abortion?” Feinstein said: “Is it morally correct? Yes. According to Professor Hamilton, by not allowing abortion to be funded by taxpayer money because of religious support, the Stupak Amendment violates the 1st Amendment’s Establishment Clause.
Question for Professor Hamilton: Now that abortion has been declared a God-given right, and morally correct, would taxpayer funding of abortion not also violate the Establishment Clause? Since God, morality, and abortion can now be used in the same sentence, does it now not pass your litmus test as the establishment of a religion? What a conundrum!
Using the fatuous standard that Professor Hamilton has established that not funding abortion on demand with taxpayer money constitutes a direct violation of the Establishment Clause, merely because the religious supported it, and considering that God’s natural law and established Christian dogma and morals were the substructure of the Constitution and guide for the authors, the honest and decent act left, based on her assessment, is to declare the entire Constitution unconstitutional. Professor Hamilton has applied, as all Leftists must, to the Constitution, the Rorschach inkblot test; the meanings of the various clauses of the Constitution are what she wants them to be to advance her secular interests.
Her argument has failed. By disregarding the entire arguable subjectivity of the Constitution, her argument failed by the decree of misrepresentation of facts. By her misrepresentation of hard data, referring to 77% of the U.S. as a subset; misrepresenting that the majority of Americans are pro-choice, when they are pro-life; stating that Senator Boxer has 40 Senators who would not vote for health care reform with abortion restrictions– it takes 60 votes to pass legislation, and that gives the GOP 60 votes to kill it; disregarding the fact that the bill is languishing in a state of can’t pass with an abortion amendment and canâ€™t pass without it. Same scenario if the bill does overcome insurmountable odds and passes with taxpayer funding for abortion, it will not pass the House with abortion restrictions, or pass without unfettered abortion and labeling prostate cancer a form of birth control for men. No discourse can survive, unscathed, with any credibility while pregnant with reckless misrepresentation.
It is fitting and quite coincidental, considering that the Reid-Pelosi Congress seems incapable of passing laws that would pass a litmus test on constitutionality (which would explain why Professor Hamilton is frequently asked to advise Congress and state legislatures on the constitutionality of pending legislation), and considering her cockamamie interpretation of the Constitution, that she is a professor at the Benjamin N. Cardozo School of Law, Yeshiva University; Benjamin Cardozo was one of FDR’s New Deal lap dogs on the Supreme Court, which started this whole usurping of the Constitution in the first place.
Jim Byrd's website is A Skewed View.