In the Palmetto Freedom Forum this past Monday (which I discussed earlier
here), Professor Robert George
asked all the candidates who participated if they as president would propose to Congress legislation, under the fifth clause of the Fourteenth Amendment, that would protect human life in all forms. Michele Bachmann, Newt Gingrich, and Herman Cain all said that they would support such legislation.
Mitt Romney voiced concerns over the "constitutional chaos" that would ensue if Congress were to disregard Supreme Court precedent on this matter (one wonders his opinion on Supreme Court precedent regarding partial-birth abortion bans). He instead advocated that he would appoint Supreme Court Justices who believe in strictly following the Constitution. He would ultimately return this question to the states, although he did somewhat ambiguously leave the door open to possible legislation in the future should circumstances change.
Representative Ron Paul also advocated that the decision be left to the states, and he openly worried that this reading of the Fourteenth Amendment would trump both the Ninth and Tenth Amendments (the Ninth Amendment reads "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people," and the Tenth Amendment reads "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.").
The relevant part of the Fourteenth Amendment reads "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The fifth section states that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
The Fourteenth Amendment was ratified to overturn the
Dred Scott ruling and base the protection of one's life, liberty and property--a clear link back to the Due Process Clause of the Fifth Amendment and, ultimately, to the Declaration of Independence--on person hood (this countered Chief Justice Taney's assertion that blacks had no rights which the white man was bound to respect). The original intent of the Fourteenth Amendment was designed to make it unconstitutional for states to have
distinctions in citizenship, where some would have more rights and others less rights. State citizenship was thus to be derived from federal citizenship--not the other way around as it had been prior to the Fourteenth Amendment.
The Fourteenth Amendment is designed to limit a state action that strikes at the heart of the natural rights principles of the Founders--between things legitimate and illegitimate. The Ninth Amendment safeguards the natural rights retained by the people by asserting that a listing or enumeration of rights--such as the Bill of Rights itself--is not an exhaustive listing of every natural right retained. In a government of delegated powers, it is simply not the duty of any branch to enumerate rights retained by the people. Underlying the Tenth Amendment is the recognition that the people retain their rights and delegate only the exercise of certain powers to the government (Article I lists only eighteen powers that can be legitimately exercised by the Legislative branch). The importance of the Tenth Amendment lies in the fact that the Founders did not want to imply that a reservation of rights meant that the government held a general grant of power. Originally, the Ninth and Tenth Amendment were combined together as one amendment, further leading to the idea that rights and powers are two sides of the same coin (Edward J. Erler has a great essay on this topic
here).
Now, with the history of the Fourteenth Amendment in mind, we can revisit Congressman Paul's logic as described above. Paul thinks there is a conflict where there clearly is not. Prior to the Thirteenth Amendment, the federal government had no power to eradicate slavery from the states in which it had already taken hold (this was Lincoln's position). The Fourteenth Amendment was adopted so that the states no less than the federal government would not be able to violate the natural rights of the governed. Paul is still living in antebellum America.
The real reason Ron Paul sees problems with this is because he views the Constitution as form only; he does not see the substance of it. For Paul, choice seems to be primary, and he does not seem to care as much about the ends that that choice is directed towards.