When it comes to an application of federal power, Americans almost always begin by debating the wrong question.

“Should we?”

Instead, we should first answer an even more important and fundamental question.

“Can we?”

The Constitution gives the federal government limited, enumerated powers. So just because an issue begs for a solution, or causes widespread moral outrage, it doesn’t follow that the federal government may step in and “do something.”

Take the recent House vote on HR3541. Known as the Pregnancy Nondiscrimination Act (PRENDA) the bill would have made abortions based on the sex of the fetus a federal crime. In some Asian countries, aborting female babies in order to have sons has become a common practice.

PRENDA failed to pass the House by a vote of 246-168 on May 31.

The idea of aborting female babies in order to facilitate birthing boy babies even makes some staunch abortion rights supporters a little queasy. And for the pro-life community, the practice causes widespread retching.  But Ron Paul stood with those voting against PRENDA, despite his historically strong pro-life stance.  Now the Texas Republican must deal with the backlash from morally outraged conservatives and pro-life voters.

Prohibiting sex-selective abortions seems like a no-brainer for a self-described pro-life lawmaker. So why did Paul take such an unpopular position within those circles and cast a vote against PRENDA? Why would he stand with those voting to allow a practice he describes as “repulsive?”

Because he recognizes the federal government possesses no Constitutional authority to enact such a law.

“I cannot support HR 3541, the Prenatal Nondiscrimination Act, because this bill is unconstitutional. Congress’s jurisdiction is limited to those areas specified in the Constitution. Nowhere in that document is Congress given any authority to address abortion in any manner. Until 1973, when the Supreme Court usurped the authority of the states in the Roe V. Wade decision, no one believed or argued abortion was a federal issue,” Paul said in a statement on his vote.

Paul is correct. Nowhere does the Constitution even hint at a federal power to police abortion. Therefore, that responsibility remains with the state governments. The mere fact that many Americans, even a vast majority, might find the practice of sex-selective abortions morally abhorrent does not justify the federal government exercising a power it does not rightly possess to stop it. Virtually every American finds rape morally abhorrent as well, but we don’t have federal rape laws, except for those that apply within legitimate federal jurisdictions.

In fact, Roe v. Wade stands as an unconstitutional power grab by the federal judiciary, handing the national government an undelegated power it does not rightly possess. Under the federalist system the Constitution created, each state should regulate abortion as it sees fit, without interference from the federal government. That means banning it all together. Or allowing it without restrictions. Without a constitutional amendment, the federal government has no legitimate say.


But we Americans have become so accustom to running to Uncle Sam whenever we want to solve this or that problem, we don’t even stop to consider whether the feds legitimately possess the power to serve our ends. We just want it done, so we all swarm Washington D.C. and engage in a sweaty wrestling match over the levers of power. Meanwhile, the Republic slips into a state of lawlessness.

Yes, lawlessness.

Every time the federal government exercises undelegated power, it breaks the law. Every time the federal government acts outside of its constitutional authority, it commits an act of usurpation – a wrongful or illegal encroachment, infringement, or seizure. It steals power from the states.  It steals power from local governments. It steals power from “We the People.” And when you insist that the federal government step in and exercise illegitimate authority to stop some moral outrage, you commit a morally outrageous act yourself.

You advocate lawlessness.

Become a member and support the TAC!

Lawlessness to create law. Doesn’t make a whole lot of sense, does it?

Paul chose to stand on principle and uphold the rule of law when he voted against PRENDA. He keeps good company.

On March 3, 1817, his last day in office, President James Madison vetoed An Act to Set Apart and Pledge Certain Funds for Internal Improvements, a bill that would have provided federal funding for roads and canals across America. Madison supported funding improvements in the U.S. transportation system and even advocated for it.  But he always held that a constitutional amendment was first necessary to give the federal government the authority to implement his plan. So when the bill crossed his desk, he pulled out the veto quill.

I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.

You cannot create a better society by resorting to lawlessness.

We need to return to the constitutional principles the United States was founded upon. Fight your abortion battles at the state level. Or push for a constitutional amendment delegating power to regulate abortion to the federal government. But don’t simply ignore the Constitution and its restraint of federal power. By doing so, you advocate lawlessness and you mock your own moral outrage.

Mike Maharrey

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.