Hi, I had a question regarding this video of presidential debate where the moderator asks Romney if he believe a state has a right to ban contraception. Now, it’s no surprise that Romney cannot answer this question, but I am interested in other people’s thoughts regarding the constitutional correctness of Ron Paul’s answer. Now I know that in Griswold v. Connecticut the Supreme Court ruled banning of contraceptives unconstitutional citing the due process clause of the 14th amendment which seems farfetched and the 9th amendment does not apply to the states. However, Ron Paul cites the 4th amendment and the interstate commerce clause which I am not sure applies to this case either. The 4th amendment should not apply to the states and now if the interstate commerce clause were to apply to this case it would mean that any type of ban by the states would be unconstitutional which I am not sure about. Can someone tell me if I am correct on this matter? Thanks.
If the Incorporations doctrine is accepted (which Professors here do not accept, for good reason), then the 4th amendment could apply. Otherwise, it does not.
The commerce clause question is a little more difficult. At first, my instinct is to say that where no trade exists (due to a state ban) no regulation could exist. So, therefore, the clause would not give the Feds the right to coerce one state into buying/selling a good it chose to ban. But I am not so sure.
In the Richmond Ratification Convention, one of the three chief spokesmen for ratifying the Constitution without first amending it–Governor Edmund Randolph–repeatedly said that Congress would have only the powers “expressly” delegated. There is no express mention in the Constitution of a federal power to require that states allow sale of contraceptive devices. This is a classic example of federal self-aggrandizement via invalidation of perfectly constitutional, though silly, state policy.
It’s also one of the few examples of Ron Paul saying something about the Constitution with which I disagree. When I heard it, I gulped.