First We Defend Law, Then We Defend Life:
What the Pro-Life Movement Needs After Decades of Failure
by Kerry L. Morgan
I. Supreme Court Opinions Are Only Evidence of Law, Not Law Itself and Not the Supreme Law of the Land
- A. Roe Is Not the Supreme Law of the Land Because it Is Not Law at All
B. Roe v. Law
C. The Declaration of Independence as a Finite Articulation of the Laws of Nature and of Nature’s God
D. The Northwest Ordinance of 1787
E. Judicial Review v. Judicial Supremacy: The Power to Review Cases Is Not the Power to Establish Law
F. Cooper v. Aaron and the Subjugation of the States
1. United States v. Peters
2. Sterling v. Constantin
G. State Fiat v. Judicial Fiat?
If the goal is to overturn Roe, then the place to start is with obtaining a lawful view of law itself. First and foremost, those who claim to love the law must recognize that Supreme Court opinions are not the law of the land. In general, Supreme Court opinions are not law at all; they are merely evidence of law. The Constitution is the supreme law of the land, and the opinions of Courts are only evidence of the meaning of that law. Article VI defines what is law the Constitution and laws and treaties made in pursuance thereof. It says nothing about Supreme Court opinions. Nothing. Nor can the Court’s specific judgment in Roe itself be the supreme law. It is not based on the Constitution or any enumerated Constitutional power. Nor can it be law because the Supreme Court was granted no power to enact national legislation. Roe’s trimester formula is the essence of a legislative enactment, rather than a judicial decision. The formula is how a legislature would write a statute, not a Court giving judgment in a case.
While the Court’s opinions are evidence of law, they are further subject to scrutiny as to whether they are good evidence. In the case of Roe, that opinion is not good evidence of law because first, it is contrary to the law of nature and of nature’s God–the law above the supreme law of the land. The law of nature establishes that God has exclusive jurisdiction over the developing fetus or unborn child. According to this law, the unborn child is to be nurtured by his or her mother. The child is placed in the womb by God for that child’s development, care and protection. The child is not placed within the womb by God so that the mother may abort the unborn child with or without the aid of a state-licensed, paid physician.
Nor is the opinion good evidence of law because second, the mother has no legal authority to destroy her own offspring under the law of nature or the Constitution. Noting in the art of judging, “inherent judicial power” or Article III gives the Supreme Court legal authority, either under the law of nature or the Constitution itself, to create a human-made right authorizing such an act or barring a state from its criminal prosecution. Neither a husband nor wife have authority to enter the womb for the purpose of destroying the fruit of the womb by intentionally induce a premature death. The unborn child’s parents may control the maternal decision to intentionally induce the premature birth of an unborn child for the purpose of preserving the mother from death through childbirth. The law may certainly judge the timing of that decision–whether it be for the pretextual purpose of destroying the fruit of the womb by intentionally inducing a premature death, or for the lawful purpose of delivery and birth, though premature. The State may only judge the timing of that decision, however, not by way of injunction, but by way of punishment after the fact, if pretextual. That is the extent of the State’s legitimate authority in the matter of abortion.
But to bar a State altogether from protecting the unborn child by enacting laws to punish abortion, is not within the scope of any legitimate judicial power. It is not within the power of the judiciary to set aside the law of nature. It is not within the power of the judiciary to adopt a meaning of the Constitution to fit “the times”–a euphemism for achieving judicially that which may or may not be attainable legislatively. The Court’s opinion and judgment in Roe is thus an exercise of lawlessness. Roe does not represent law or the rule of law. It does not represent good evidence of the law either. It represents lawlessness it is outside the law. It is outside the law of the land and outside the law of nature. Roe is a model example of the lawless use of “law.” Law is good if used lawfully. But if law is used unlawfully, it is lawless and has no binding legal precedent. It does not bind the executive, the legislature or the judges of any state.
Nor does it bind any judge on the federal bench under stare decisis. Stare decisis is actually short for stare decisis, et non quieta movere, which means “to stand by decisions and not disturb settled matters.” Note that the doctrine is concerned with judicial decisions not legislative matters. It is also a policy proposition and not a fixed rule of law itself. Finally, the doctrine implies that principles laid down in previous judicial decisions ought to be followed unless they contravene the ordinary principles of justice. Thus, any discerning federal judge should ask if the decision in Roe contravenes the ordinary principles of justice before he or she blindly follows its holding. Is the proposition that human beings “are endowed by their Creator with certain unalienable rights” including the right to life an ordinary principle of justice? Is the proposition that to secure this right “governments are instituted among men” an ordinary principle of justice? Is the proposition that the courts ought not exercise legislative power an “ordinary principle of justice?” Or is the supreme principle of justice that lower courts must neurotically follow decisions which are contrary to justice, not law, not good evidence of law, legislative in character and lack any Constitutional foundation no matter what?
Let us now turn to a further examination of justice and its ordinary principles. In this regard the best evidence of the concept as a foundational matter in American law is found in the Declaration of Independence of 1776 and in the Northwest Ordinance of 1787. The thesis is that the People incorporated the law of nature into the Declaration of Independence and later relied upon it within the framework of our Constitutional system in establishing State Constitutions and state laws made in pursuance thereof, including laws drafted and enacted to preserve the unalienable right to life of an unborn child. Congress later recognized in the Northwest Ordinance that the fundamental principles of civil and religious liberty are the foundation of the state governments. The principles and rights in the Declaration and Ordinance are part of the organic law of this country and of the states.
The Court’s opinion and judgment in Roe stands in stark contrast to these rights and principles. Roe exceeds the law of nature regarding human life and the objects of law itself because it destroys the ability of a State to do what it was instituted to do to secure the unalienable right of life and to secure the liberty of its citizens. It is, therefore, ipso jure unjust. But it is also an unconstitutional decision. It is unconstitutional because it is a judicially created tri-mester scheme a scheme which is quintessentially legislative in nature and character and thus fails to come within any judicial power which the People extended to the Court in the supreme law of the land–the Constitution. It is also unconstitutional because the right asserted therein to an abortion is not in the Constitution or any fair reading of its text as written.
It has been observed that Roe is the “raw exercise of judicial power.” Actually, it is not even judicial power which is being exercised. Roe is rather the usurpation of state legislative power because it rewrites the states’ criminal statutes and replaces them with a tri-mester formula of the Court’s own design. Nor is Roe the exercise of raw power. It is rather the exercise of jurisdiction not given to any civil government the power to declare that a state legislature has no authority to protect unborn human life. State governments are instituted for the very purpose of securing that right. These basic principles render the decision in Roe, by definition, one which exceeds any legitimate judicial power extended, or which could be extended, to the Supreme Court by Article III of the United States Constitution. As such Roe is both lawless and unconstitutional. The Court has become a blind guide leading us into a Constitutional ditch. But have pro-life lawyers and public officials led in any other direction?
We have discussed some basic ideas. The Constitution is the Supreme law. Supreme Court decisions are not the supreme law. Roe is not the Supreme law. The legislature makes law. Supreme Court decisions are not law. Roe is not law. Supreme Court decisions are evidence of law. Roe is thus, merely evidence of law. Decisions are good evidence of law where consistent with the Constitution, Declaration and Northwest Ordinance. Decisions are bad evidence of law if contrary thereto. Good decisions should be followed. Bad decisions should not. Roe is not good evidence of law. It is not good evidence because Roe’s holding is legislative in character, not judicial. It is not good evidence because Roe’s right to abortion is not in the Constitution.
Public officials are not bound to follow judicial decisions which are not good evidence of law and can appeal to the president not to enforce a decision which is not good evidence of law. Federal judges are not bound to follow Roe because of stare decisis because they can always point to better evidence of law than that relied upon in Roe. At this point it is also clear that Roe v. Wade ought to be accorded as much precedent and weight as Dread Scott v. Sanford. But people being what they are creatures of habit, even bad habits a more detailed discussion is probably necessary to bring the extent of Roe’s lawlessness to light. It is also necessary to discuss what can be done about the holding and what has not been done by those claiming to do the most.
It has also been asserted that Roe is lawless. Roe is lawless because it exercises a jurisdiction not given to Courts the jurisdiction to bar a State from fulfilling its reason for existence in securing the unalienable right to life. This is the purpose for States established in the Declaration of Independence. But before this purpose of state governments is discussed, it is first necessary to discuss the law which gives and limits the objects of state governments-the laws of nature and of nature’s God.
As a prefatory matter, whenever God or the notion of the law of Nature’s God are discussed, however, the usual response is to whine that religion is being “forced” upon the public, that religion and politics or church and State do not mix, or that no one can know the substance of the law of nature and nature’s God, so it is a useless legal concept. There is also the rallying cry that such talk violates the Establishment clause of the Constitution’s First Amendment or various state Constitutions. Heaven forbid if a judge cites the Declaration’s acknowledgment of the laws of “Nature’s God” in a judicial opinion incorporating a substantive limitation on civil power! While these views are interesting and predictable, they are essentially irrelevant. They are irrelevant because the substance of the law of nature and nature’s God was not first articulated by the Declaration of Independence only to be subsequently disestablished by the Constitution’s First Amendment or a state law. Neither is the substance of the laws of nature a function of religion or rendered useless by a lack of knowledge about its legal concepts or rules. In fact, the law of nature existed thousands of years before any nation or the establishment of any church on the face of the earth.
The critical substance of the law of nature and of nature’s God, as far as it is relevant to the American system of government, can be known by recourse to the Declaration of Independence itself and the nature of things. We may look to other evidence if that is helpful just like the Framer’s did, but we need not exclusively consult with clergymen or justices for a dispensation of this knowledge. The evidence is plainly written before us. The substance of the law, as far as it was essential to the necessary governmental and natural rights predicates of the American experience, was written down in the Declaration of Independence. It was codified in part in that document. It can be read, discussed and applied. It can even be cited without being degraded to “dicta.” The law’s basic principles are not left to endless whining, speculation, or demagoguery. An understanding of the specific implications of the law of nature is basically a function of the Declaration’s text, and not of mistaken Constitutional adjudication, religious doctrine, clerical pontificating or political wrangling.
Consequently, the legal principles of the Declaration of Independence are not merely nice ideas, or simply ideas that have interesting historical or moral dimensions. Magna Charta and the Declaration of Independence are printed in the organic law sections of most state Codes for a reason–they inform what follows. They animate the state constitutions and statutory codes subsequently promulgated upon their foundations. They also guide the separate branches of state government in their form and organization. In the case of the American system, the Declaration of Independence is a critical foundational legal document. It is not a political document only, but also a legal document with legal force and binding legal effect. It states principles that are binding as a rule of law on the various branches of the governments state and federal. The Declaration identifies principles in the law of nature and asserts that they ought to control those constitutions, governments, and codes which follow. In America, the controlling rule of law is that no civil government or any branch thereof may act in any way that is repugnant to the stated principles of the Declaration of Independence. Those principles are especially legally binding on every State in the Union and are binding on an equal basis in all respects whatsoever.
Turning to the Articles of Compact in the Northwest Ordinance, a reaffirmation of the idea that certain preexisting principles arising from the law of nature animate, as well as limit, the state governmental power which was then being established in the territories. Section 13 declares the legal purpose of the Compact. It states that the Compact is established:
for extending the fundamental principles of civil and religious liberty, which form the basis whereupon these republics, their laws and constitutions, are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory; to provide also for the establishment of states . . . .”
What does this mean? It means that the State of Michigan, for instance, was created, established and admitted to the Union upon this foundation. It means that the fundamental principles of civil and religious liberty are the basis whereupon the State of Michigan is erected. It means that the principles of civil and religious liberty are the basis of all of its laws and constitution and government. It means that in Michigan, those principles “forever hereafter shall be formed.”
What does all this mean to a state judge or legislator or governor in the 21st century? It means that, in judging cases or controversies, state judges and justices are duty bound to acknowledge the binding legal effect of “the principles of civil and religious liberty” in their opinions, and with respect to the state supreme court in the administration of their oversight over the state bar, to ensure that its rules do not trample down these principles. It means that the governor ought not enforce or sanction laws or orders of courts which trample down these principles. It means that the legislature ought not enact laws or adopt internal rules contrary to these principles. And it means that every public official ought to sit down and familiarize themselves with the nature and scope of these principles as a public duty.
Perhaps it may be objected that the foregoing construction of state officials’ obligations is incorrect. Very well. What then do theses principle require? Nothing? Some application of the words is necessary, lest the words are made to have no effect by construction and the foundations of the states be destroyed. This would be tantamount to saying that “the fundamental principles of civil and religious liberty, which form the basis whereupon these republics, their laws and constitutions, are erected” mean nothing. Why then not also conclude that these republics, their laws and constitutions can be thereby declared to mean nothing either? And ipso facto, the power of the governors, legislatures and courts of “these republics” can be thereby declared to mean nothing either. To nullify these foundational principles by interpretation, construction or dislike destroys the law itself and must invariably destroy the governments and branches of governments based thereupon. “If the foundations are destroyed then what can the righteous do?” Why nothing of course, except to submit to the slavery which they have helped to bring about because they refused to defend the foundations from both usurpers and the destruction of foundational ideas well written in books they never opened.
Let us return to the point. The point is that both the Declaration of Independence and the Northwest Ordinance contain foundational principles of law, government and rights which judges, legislators and governors are duty bound to acknowledge and follow in the administration of their respective branches. These principles bind each and every state in the Union.
These principles bind not only those thirteen states which signed the Declaration, and not only those states formed out of the Northwest territory– Michigan, Ohio, Indiana, Illinois and Wisconsin. These principles bind all the states. Subsequent Congressional statutes for admitting Louisiana, Mississippi, Alabama, and Tennessee into the Union refer to the Articles of the Northwest Ordinance as authoritative even though those states are clearly south of the Ohio river. In fact, all admission statutes passed by Congress contain the words “equal footing” or, to identical effect “same footing,” with the “original States” with respect to their admission into the Union.
So what is the point that all states have equal footing with the original states? By affirming “equal footing” with the original states in the Articles of Compact and in subsequent state admission statutes, Congress intended to bind new states to the legal principles adopted by the original states–namely, the principles of the Declaration of Independence. Congress made this mandate abundantly clear when it expressly provided that the respective state constitutions of various newly admitted states shall be both republican in form and “not repugnant to the principles of the Declaration of Independence.”5 Because every state is admitted “on equal footing with the original States,” they are each admitted equally in all respects whatsoever, including the proposition that the states shall be both republican in form and “not repugnant to the principles of the Declaration of Independence.”
For thirty years, pro-life advocates and attorneys have simply not understood this legal proposition. Pro-life attorneys have not first been pro-law attorneys. We have failed to see that a state’s highest law its constitution–ought not contain anything repugnant to the principles of the Declaration. Among those principles is the proposition that human beings “are endowed by their Creator with certain unalienable rights, that among these are life . . . .” Among these principles is that state governments are instituted for the very purpose of “secur[ing] these rights.” A state constitution which provides a state legislature with power and authority to protect human life, and which gives its judiciary the power and authority to hear cases involving deprivation thereof, and which gives its executive the power and authority to enforce those laws and judgments, is a constitution which is consistent with the Declaration’s principles.
But, when a state constitution, and state statutes established pursuant thereto, are judicially nullified and rendered contrary to the unalienable right to life by the dictates of the Supreme Court, and thus a state whose legislature, judges and executive are made to fail in their duty to preserve, protect and defend human life by the dictates of the Supreme Court, then such a constitution, its officers and officials, their offices and functions are rendered most repugnant to the legal principles upon which they are actually based. That state government’s operation is first, repugnant to the “fundamental principles of civil and religious liberty” imposed in the Compact of the Northwest Ordinance, and second, is rendered repugnant to the principles of the Declaration the principle that governments, including state governments and the legislative, executive and judicial branches of that state government, exist and are instituted to secure the unalienable rights of its citizens including the unalienable right to life of the unborn citizen within its jurisdiction.
Does any state official honestly believe that the Supreme Court has a Constitutional authority to nullify the foundations of state government or declare inapplicable the laws of nature upon which they are established? If so, then we have no government of law and only rule of men. Let us not then complain about our servitude.
What state officials may lawfully do about the purported judicial nullification of their fundamental and foundational legal duty is discussed a little bit below, but it is important to pause and consider that this is a watershed matter. It is concerned with the legitimate ends of civil government. It involves whether public officials have an ability or inability to discern the lawful from the lawless. It requires an understanding that no judicial decision is lawful if against the law of nature, the foundational principles of the Declaration or the Northwest Ordinance. It mandates that no Supreme Court abortion decision is Constitutional if grounded upon imposition of a judicially created tri-mester scheme of abortion, which scheme is legislative by its nature and nothing other than an unlawful legislative enactment wrapped up in judicial clothing parading as constitutional law.
Justice Blackmun’s opinion creating the tri-mester abortion scheme is just such a legislative creation, the imposition of which on the states is a usurpation of state legislative power to prohibit abortion. The Court’s decision, therefore, is truly repugnant to the “fundamental principles of civil and religious liberty”and repugnant to the “unalienable right” to life the principles and rights upon which the very foundation of state governments is legally erected. If the Supreme Court can disembowel and decimate the very foundation of state governments by merely fabricating a right to abortion and declaring it in an judicial opinion, and no other governmental entity, state or federal, and no official, state or federal can do anything about it, then we have no government on any principles whatsoever and we are slaves of the Supreme Court.
Now many lawyers, politicians and judges by and large simply reject this view of the Northwest Ordinance and the Declaration of Independence and of law. Some do so with all the arrogant passion they can muster. Others simply were taught the Declaration or law of nature is not relevant and that was the end of their inquiry. We have all been there. But among the legally educated, perhaps they disdain it because they have been taught or believe that Cooper v. Aaron, 358 U.S. 1 (1958) or opinions like it, reflect the pinnacle of legitimate judicial power. That famous desegregation case dealt with a plan of gradual desegregation of the races in the public schools of Little Rock, Arkansas. Let us turn to that cardinal judicial opinion and consider how the Court itself has been infected by the doctrine of judicial supremacy in order to recognize how much we are already believers in it ourselves. Then perhaps we can see clearly to remove this beam from our own eye, and speck from the Court’s eye.
Under that plan, black students were ordered admitted to a previously all-white high school at the beginning of the 1957-1958 school year. Due to actions by the Legislature and Governor of the State opposing desegregation, these children were first unable to attend the schools until troops were sent and maintained there by the Federal Government for their protection. The students then attended the school for the remainder of that school year. Finding that these events had resulted in tensions in the school, the District Court thereafter granted the school board’s request that operation of their plan of desegregation be suspended for two and one-half years, and that the children be sent back to segregated schools. The Court of Appeals reversed that decision and the Supreme Court affirmed.
Not content, however, with this correct judicial result, the Court took the added opportunity to address the argument of the Governor and Legislature of Arkansas that they were not bound by the Court’s holding in Brown v. Bd. Of Education, 349 U.S. 294 (1955). That decision ordered that the public schools in Kansas and elsewhere be desegregated “with all deliberate speed.” Consequently, the Court launched into a discussion of law which was not necessary to the disposition of the case before it. The Governor had already been enjoined by the District Court from interfering with its desegregation order through intervention of the Justice Department as amicus curiae, and that decision was affirmed on appeal in Faubus v. United States, 254 F.2d 797.
Yet, the Supreme Court could not resist advancing its argument to expand the power of judicial review into the power of judicial supremacy. Pay close attention to their reasoning and you can spot the flaws. First, it remarked that Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the case of Marbury v. Madison, 1 Cranch 137 (1803) that “It is emphatically the province and duty of the judicial department to say what the law is.” This is the power of judicial review which is found in Article III, Section 2.
It is profound, however, that the Cooper v. Aaron Court did not quote any Constitutional provision in support of its opinion, but only chose to cite to the Constitution and its own prior opinions–opinions which are only evidence of law and not law itself. Nevertheless, from this legitimate recognition of the power of judicial review, the Cooper v. Aaron Court took a forbidden step further. It first re-characterized its own opinion in Marbury asserting that Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.” 358 U.S. at 18 (emphasis added). This assertion is both false and deceptive. It is false because Marbury itself did not recognize the power of judicial supremacy, but rather only the power of Constitutionally grounded judicial review. It is deceptive because Marbury is only evidence of law and not law itself. The power to review cases is not the power to establish law.
To know the law, one has recourse to the Constitution. Now it becomes clear why the Court did not first quote the Constitution, because the forbidden step it took advancing from legitimate judicial review to the judicial supremacy is not found in the Constitution’s text. The Constitution simply grants no “supreme” expository power to the Court. Read Articles III and VI and you will not find it. What will be found in Article VI is the truth that the Constitution, laws and treaties “shall be the supreme law of the land.” Nothing is said about Supreme Court opinions being supreme law, let alone being law at all. Nothing not one iota. The Constitution extends no power to the Court to claim that its constitutionally based opinions, which are not law, are the sole and exclusive meaning of the Constitution itself. The judicial power to review cases arising under the constitution, laws and treaties is clearly stated Article III, section 2, but that power is not the power to rewrite the Constitution itself. Remember, the power to review cases is not the power to establish law, let alone the supreme law.
Ignoring this Constitutional lack of power, the Cooper v. Aaron Court took pains to lecture State officials that “No State legislator or executive or judicial officer can war against the Constitution without violating his [oath] undertaking to support it.” Do you hear that Governor and Legislator? Do you hear that State Supreme Court Justice? The Court is accusing you. It is saying that if you don’t go along with what we tell you in our opinions, that you are warring against the Constitution itself. You better be careful.
But wait a minute. The Court has no power of judicial supremacy under Article III. Its opinions are nowhere granted a supreme status in Article VII. Yet, it is warning you not to “wage war against the Constitution.” Did you miss that? Did your mind equate this dicta with a true exposition of the Constitution? The irony should have hit you. The Court has perfected the trick of concealing guilt through accusation. The Court is guilty of waging war against the Constitution. It is even guilty of waging war against the legal foundations of state power embedded in the Declaration and Northwest Ordinance. Now it tries to conceal that guilt by accusing the state governments of the same offense warring against the Constitution. Don’t be misled.
Having shot this warning over the states’ bow, the Court then hearkened back to an opinion written by Chief Justice Marshall who spoke for a unanimous Court in saying that:
If the legislatures of the several States may at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery. . . .
See 358 U.S. 18, quoting United States v. Peters, 5 Cranch 115, 136 (1809). The Court knows it needs to bring in the big guns. It needs to reach back to Chief Justice John Marshall for some credibility so it can say “See we aren’t making this up, why Marshall himself believed this.” But is this true? In Peters two private parties sued in federal court each attempting to obtain possession of certain property in admiralty. The federal court awarded title to one and not to the other. The State of Pennsylvania, however, claimed an interest in title tied to the loser and rather than litigating its interest in federal court as a Plaintiff, the State instead passed a state law which authorized and required the governor to use any means necessary to prevent the property from being subjected to “any process whatever, issued out of any federal court” for its seizure and delivery to the prevailing party.
It is in this context that Chief Justice Marshall remarks that “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.” If there ever was dicta, this is it. Why is this dicta? It is dicta, because the state of Pennsylvania was not even a party to this action. The Court had no jurisdiction over the State. Thus, for Marshall to discuss the power of a non-party is dicta. For the Cooper court, however, to make this dicta stand for the proposition of judicial supremacy is a judicial fraud. They honor the Constitution with their lips, but their hearts are far from its literal text.
The inquiring legal mind should be asking how the case came to the Court in the first place. The action came to the Supreme Court by way of mandamus. The federal judge below had returned the original mandamus directing him to exercise the sentence pronounced by himself in the case or to show cause for not so doing. The lower court federal judge stated that the legislature has passed a law which would oppose his process. The federal judge did not know what to do so he asked the Supreme Court, the head of his branch of government for direction.
Now what remedy did the Chief Justice order? The Court ordered a “peremptory mandamus.” To whom was the mandamus directed? The State of Pennsylvania? The Governor? The Legislature? No, none of these. They were not parties. The Court had no jurisdiction over them. The Court ordered a peremptory mandamus to the federal court. More significantly, did the Supreme Court “strike down” the state law? No. Did it declare the state law “unconstitutional”? No. He simply ordered the lower court judge to issue process. Did the Chief Justice even argue that the federal marshals had to obey the lower court judge or did he command the President to follow through and make sure the federal marshals who worked for the President ignore the State law? No. Chief Justice Marshall offered dicta sure enough, but at least he understood that his jurisdiction in this case was over his own branch, not that of the states or the federal executive. Peters stands for the proposition that the Supreme Court has authority over inferior federal judges, not that it has jurisdiction to nullify the laws of state legislatures not at issue or commandeer state officials who are not parties to the action.6
Undaunted by the actual rule of the Peters case, however, the Cooper Court then opined that “A Governor who asserts a power to nullify a federal court order is similarly restrained.” Of course under Peters he is not restrained at all. Having now dissected the Peters case and recognizing that the only restraint that the Supreme Court actually imposed was on its own lower federal court and not on the legislature or non-parties, it becomes obvious that the Court’s attempt to jump from its Peters‘ dicta about the legislature, to the Governor of Arkansas, is unpersuasive. It is unpersuasive because the parties in Cooper were private petitioners seeking to accelerate the desegregation of the little Rock School System and the Superintendent of that District. The Governor was not a party defendant, nor was the legislature. This means that any commentary which the Court offers about the views of the legislature or Governor, which were not at issue in this case, is also dicta. Is it dicta because the only holding and order in the case was to immediately reinstate “the orders of the District Court enforcing petitioners’ plan of desegregation.”
In other words, the actual legal result was remarkably like Peters’ result the Court ordering its lower court to take action. Yet the Cooper Court showed no such restraint which Marshal showed in the Peter’s case. No, the Cooper Court used the case to go well beyond any claim of judicial review. It used Cooper v. Aaron to claim the ultimate power of equating its opinion with the supreme law of the land.
Moving further into its dicta, the Court said, quoting this time Chief Justice Hughes in 1932, also for a unanimous Court, that if the Governor of Arkansas had “power to nullify a federal court order” then
it is manifest that the fiat of a State Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of State power would be but impotent phrases. . . .
358 U.S. 18-19, quoting Sterling v. Constantin, 287 U.S. 378, 397-398 (1932). What is the factual context in which the Sterling Court made this statement? The Governor of Texas had declared martial law and ordered the military to control several counties in Texas. As part of this military oversight the Governor established a Commission to control oil production in those counties thereby interfering with the private rights of the land owners. A federal district court had given the private land owners relief against the Commission, but the Governor maintained that his military authority to direct the Commission to control oil production was unimpaired. When the federal court, finding the Governor’s action to have been unjustified by any existing exigency, gave the relief appropriate in the absence of any other adequate remedy, the Governor who was a party to the action asserted that the court was powerless to intervene, and that the Governor’s order had the quality of a supreme and unchallengeable edict, overriding all conflicting rights of property and unreviewable through the judicial power of the federal government. The Governor claimed this power due to the state of war. That was his legal argument.
The Sterling Court concluded that there was no factual basis for the declaration of war and thus the necessity for martial law and control of oil failed. It is in this context that the Sterling Court stated:
If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the federal Constitution upon the exercise of state power would be but impotent phrases, the futility of which the state may at any time disclose by the simple process of transferring powers of legislation to the Governor to be exercised by him, beyond control, upon his assertion of necessity [287 U.S. at 397-398].
What is the extreme position? The extreme position is that the Governor can assert the power of a military commander in a state of war and can then commandeer private property when, in fact, no justified factual basis for the state of war existed in the first place. In short, the extreme position is that when the state claims a fraud to deprive persons of their rights, then the Constitution is impotent. Moreover, a Governor who is a party and against whom an injunction has been issued, must obey the injunction or be subject to the coerced enforcement of the injunction by the federal executive branch if the executive is persuaded of its lawfulness. That is the context.
So what do these Sterling quotations mean? What principle is embodied therein? The principle is that the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions. This is the rule of the case and good evidence of the law. But nothing in this principle proves that the Supreme Court’s decisions in cases or controversies are the supreme law of the land on equal par with the Constitution itself, or that the Court has the power to craft legislation or commandeer the federal executive power. Nothing in Sterling makes the lawless claim that Supreme Court opinions are the supreme law of the land or prove “the federal judiciary is supreme in the exposition of the law of the Constitution.” Nor does it limit the Constitutional and legal remedies which a State legislature enjoys in regards to unconstitutional or erroneous decisions of the Court to which it may be a party. These remedies are discussed more fully below in the section entitled “Diverse Constitutional Remedies or Nationalistic Judicial Decrees?” The Court simply affirmed the injunction against the Governor issued in the court below and, unlike the Cooper Court, was satisfied with the result.
As mentioned before, the Cooper Court is quick to quote Sterling to the effect that if “the fiat of a State Governor, and not the Constitution of the United States, would be the supreme law of the land; th[en] the restrictions of the Federal Constitution upon the exercise of State power would be but impotent phrases. . . .” In other words, there has to be one Constitutional meaning across the fifty States. But, of course, nothing in this rule mandates or appoints the Court to be the supreme or final prophet of that meaning.
If fiat power is the problem, what about judicial fiat? It also stands to reason that if the fiat of the Supreme Court, “and not the Constitution of the United States, would be the supreme law of the land,” then the restrictions of the Federal Constitution upon the exercise of judicial power would also be but impotent phrases. The analogy is perfect. Fiat power is fiat power. Fiat power exercised by a Governor is fiat power. Fiat power exercised by the Supreme Court is fiat power. Labeling an executive order or judicial opinion “fiat power” does not change its nature. The critical reason we cannot see all this is because we simply cannot bring our minds to accept the notion that the Constitution has meaning apart from the judiciary’s pronouncements. We act as if the framers wrote a document with the idea that its meaning would thereafter be discovered by the Court and the Court alone.
What is the word “fiat” in the above quotation to really mean? The Court is trying to argue that “fiat” is only something which Governors undertake. But, frankly, the judiciary is as capable of “fiat” as a State Governor. What is Roe v. Wade but fiat? What is Roe v. Wade but a universal rule of purported Constitutional construction? What is the woman’s right to privacy which is broad enough to include abortion announced in Roe v. Wade? It is not in the Constitution of the United States. It is only in Roe v. Wade. The Constitution is not shown its due respect as the “supreme law of the land;” Roe v. Wade has become the supreme law of the law. The restrictions of the Federal Constitution upon the exercise of judicial power are cast down and trodden under judicial foot. The Constitution itself has become “impotent phrases” rendered as such by the Court.
Cooper falsely declared “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.” But Roe went further and declared the principle that reference to the Constitution’s actual text is not necessary to the federal judiciary’s supreme exposition thereof.
Perhaps we still cling to the belief that the Justices are not taken from the body of People but poses a wisdom which is beyond our mere understanding a divine right to judge? At least the Governors are not claiming that their “fiat” should be the one rule governing the entire nation. But the Supreme Court makes this boast and we plead submission and approval. Our best lawyers willingly succumb.
Moreover, the Court is also quick to proclaim that “If the legislatures of the several States may at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery. . . .” Well then, how much more true is the parallel assertion that if the Supreme Court of the United States “may at will, annul” the text of the Constitution, “and destroy the rights acquired under that document, the constitution itself becomes a solemn mockery. . . .”
Having puffed its own Constitutionally limited and enumerated power into a supreme power of judicial (not Constitutional) exposition, the Court then crowned its argument with the ultimate usurpation:
[the] interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “anything in the Constitution or Laws of any State to the Contrary notwithstanding.” Every State legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 “to support this Constitution.”
Notice how the Court jumps from false premise to false application. From the false premise that its opinions are equal to the supreme law of the land, the Court then uses Article VI to bludgeon State officials into servitude to its opinions. Of course, a reading of Article VI indicates only that the Constitution is the supreme law of the land and laws made in pursuance thereof, and treaties made under the authority thereof. Article VI says not one word about Judicial decisions, judgments, or chain citations to its own judicial opinions being supreme or entitled to the slavish obedience of State officials. As a matter of fact, Article VI says that all legislative, executive and judicial officers shall be bound by oath or affirmation to “support this Constitution.” Article VI does not say that all legislative, executive and judicial officers shall be bound by oath or affirmation to “support the opinions of the Supreme Court” especially when cited by the Court. The Supreme Court, however, now does not care about nor affirm the actual text. But do “pro-life lawyers”or judges care either?
* Copyright © 2004 Kerry L. Morgan. Used with permission.
5. These States include Nevada (1864), Nebraska (1867), Colorado (1876), Washington (1889), Montana (1889), Utah (1896), North and South Dakota (1899), Arizona, New Mexico (1912), Alaska (1958) and Hawaii (1959). See generally, Edward Dumbauld, THE DECLARATION OF INDEPENDENCE AND WHAT IT MEANS TODAY (Norman, OK: University of Oklahoma Press, 1950) 63.
6. The former Attorney General of Alabama, Bill Pryor, was served with a certified copy of the injunction issued against Chief Justice Moore in the Ten Commandments case. Glassroth v Moore 229 F. Supp. 2d 1290, 1297 (M.D. Ala. 2002).
Attorney General however, was not a party to that case nor was his client the State of Alabama. Nevertheless, the Attorney General stated that “I will not violate nor assist any person in the violation of this injunction. As Attorney General, I have a duty to obey all orders of courts even when I disagree with those orders. In this controversy, I will strive to uphold the rule of law. We have a government of laws, not of men. I will exercise any authority provided to me, under Alabama law, to bring the State into compliance with the injunction of the federal court, unless and until the Supreme Court of the United States rules in favor of Chief Justice Moore.” Statement of Attorney General Bill Pryor Regarding Announcement of Chief Justice Moore That He Will Not Obey The Injunction of The Federal Court, 14, 2003.
While it is beyond the jurisdiction of a federal judge to issue injunctions to non-parties in the first instance, it is all the more unfortunate that the Attorney General believed he was bound thereby and not only bound, but bound as a matter of his purported defense of the “rule of law.” Had the Attorney General understood the Peters case, he would have seen that it was the federal judge that rejected the notion that we have a government of laws. He would have seen that he has not one iota of responsibility to follow an injunction issued in a case to which he was not a party. He would have seen that whether or not he disagreed with the order was irrelevant. What was relevant was whether the order could bind him as a legal proposition. He would have seen that upholding the rule of law would require him to return the writ to the issuing court stamped: “No jurisdiction service of process refused.” He would have also directed U.S. District Judge Myron Thompson to take the matter up with the executive branch by asking the President to send out his federal marshals to come and take the monument if that is what the Court wanted to do, while also demanding that the President himself refuse to send his marshals to support such a lawless injunction.
By following the court’s lawless injunction, however, the Attorney General himself trampled down the rule of law. By stating he would follow the federal court’s injunction until told otherwise by the Supreme Court proves he believes the Court is supreme over all the states and the branches of its government and his only duty is unlimited submission.