First We Defend Law, Then We Defend Life:
What the Pro-Life Movement Needs After Decades of Failure
by Kerry L. Morgan
II. Diverse Constitutional Remedies or Nationalistic Judicial Decrees?
We now turn to remedies both legal and political. What option does a Governor, for instance, have when faced with a Supreme Court decision which is bad evidence of law? What about the other branches? Do they have to sit idly by and let the Supreme Court rule the land? What about political options? Do we just have to wait for the Justices to move from this world to the next and hope for a better Court in the future?
Consider the marvelously diverse remedies the Constitutional and our system of government provides. Its called checks and balances but is not like what you were taught in your government run and controlled high school civics class. Look at the Arkansas case again. Had the Governor refused to adhere to the District Court’s injunction against interference with the school board’s desegregation plan, and simply disregard it as a matter of his Constitutional views on the subject,(as he was perfectly entitled to disagree with the Court’s decision and not follow it), then the proper remedy would have been for the Court to issue an order to show cause why he should not be held in contempt. If the Governor failed to appear for the hearing, then the correct remedy would have been to dispatch the U.S. Marshals to forcibly bring him into court to “show cause.” If he was found in contempt of court, the proper remedy would be to impose appropriate sanctions, incarceration or punishment. If the Governor called out the State militia to prevent his arrest or incarceration, the proper remedy would be for the President to independently review the lawfulness and Constitutionality of the Court’s decision and order.
If the President was persuaded that the decision and order were lawful and Constitutional, he would nationalize the State militia and ultimately order them to deliver the Governor into federal custody. The Governor would either submit or resign. On the other hand, if the President was persuaded that the decision and order were unlawful or unconstitutional, (as the President is perfectly entitled to disagree with any court decision or order,) then he would instruct the U.S. Marshals (who work for the President and not the court) to decline to enforce the decision or order of the lower court, wherein the matter could be appealed eventually to the Supreme Court.
After the Supreme Court rendered its decision, and if contrary to the President’s view, the President would still be perfectly entitled to refuse to enforce the Supreme Court’s decision. The correct remedy for this refusal would be that Congress could then consider impeachment of the President for treason, bribery or other high crimes or misdemeanors if it was of the opinion of Congress that the President’s refusal constituted such an offense an unlikely and historically untenable conclusion. See Article II, Section 4. If the Congress, however, believed that the Court had acted lawlessly or usurped legislative or executive power, and that such conduct was not in keeping with a Justice’s good behavior, then it could remove specific Justices. See Article I, Section 3, clauses 6 & 7, and Article III, Section 1. If Congress failed to take sides and skirted the issue, the next election would then serve as a national referendum on the understanding of the President versus the understanding of the Court versus the action or inaction of Congress. The People would also decide if their Governor acted properly or improperly and if their own legislature did likewise. Elections are brutally efficient when the People have it in their mind to move in one direction and public officials and courts in another.
Moreover, what could the People of the States do either through their legislatures or in a convention called for a specific purpose? They could propose amendments to the Constitution (as could Congress) according to Article V. They could advance their own views in a State Constitution regarding federal Judicial supremacy and its limits. Their legislatures could also direct their respective Senators in the United States Senate to reconsider the adverse legal or political effect of a specific law or judicial decision and its impact on the people, the State or the Republic. They could seek to repeal or amend that legislation, protest or refuse enforcement of a judicial decision, or craft amendments for consideration by the House of Representatives and then the People. There are many remedies. But they are all rendered irrelevant if the People, and their elected officials, all mistakenly believe in the slavish doctrine of judicial Constitutional supremacy.
Now the reason such a lengthy chain of events and remedies is described herein is to illustrate how wonderful our Constitutional system is when it comes to opportunities to understand, interpret and apply the Constitution. The Constitutional system is miraculously diverse in its checks and balances in not letting any branch, or any government for that matter, gain an unfair advantage over the other. It recognizes that every weighty question of Constitutional significance will necessarily entangle the judiciary, State and local officials, the President and the Congress. It recognizes that ultimately the People will decide the matter through the ballot box and then, if necessary, by Amendment under Article V. Beyond that lies the right of lawful revolution under the terms and conditions articulated in the Declaration of Independence.
In contrast to this exceptional Constitutional system, however, notice how dogmatic and uniform is the Court’s monolithic approach. Observe how it cuts the entire process of political participation and accountability short by gutting many of these remedies and destroying their wonderful ability to check the abuse of judicial power and balance lawless decisions, judicial or otherwise. Under the Court’s autocratic “divine right of judicial supremacy” model every elected official, both high and low, and the People also, must submit to the Court’s judicial and extra-judicial edicts. Our options are now mistakenly limited to either persuading our judicial masters to have mercy and overrule their own lawless decision, or amend the Constitution.
Well, these are certainly options, but they are not the only options as will be discussed shortly. When we try to exercise the first and foremost options of appealing to the other two federal branches or to our State legislatures or governors, they all bleat in one voice: “the federal judiciary is supreme in the exposition of the law of the Constitution.” They, therefore, pervert their oaths of office to support the Constitution into judicial cheerleading. While some say, “we are pro-life,” their creed is not “pro-law.” Their words seek life, but their hands ensure death. The eyes of God search out the legislatures and courts and the branches of the federal and State executives for one who will say “the federal judiciary is not supreme over the Congress or President in the exposition of the law of the Constitution.”
See also how the doctrine of judicial supremacy insulates all legislative and executive officials from Constitutional and political accountability. See how it politically insulates those who are “pro-life?” They campaign for State office, as such, but do not have to do the one “pro-life” thing they were elected to do: adopt and enforce a State criminal abortion statute. “Well, we can’t do that because of Roe v. Wade” they croon. They thereby admit they are indentured to the Court, rather than representatives of the People. See also how those officials who might think about standing against judicial lawlessness fear they will be beaten down (as the slaves they are) with the rod of judicial supremacy? If you look closely, you can also see pro-life lawyers cheering on their judicial masters in their pleadings and briefs by droning that “Roe is law.”
Permit the point to be pressed further. Do we understand how the Court’s claim to be the supreme living embodiment of the Constitution also chops the People off at the knees by stunting open discussion of national questions of Constitutional import, rendering impotent their power to demand the President and their Congressional representative exercise independent judgment. Fascism has nothing to fear from the Court when it short circuits the Constitutional process, and renders impotent the structural accountability and power of the States and People by declaring that “the federal judiciary is supreme in the exposition of the law of the Constitution.” The Court overplayed the sense of national calamity in Cooper and used the opportunity to commandeer power through arrogance, fear and force. Roe is its legal prodigy.
What else can be done about judicial lawlessness and unconstitutional conduct? Is there a game plan? The first remedy for a judicial decision which is lawless ought to be proportionate to the wrong. Thus, the most elementary remedy is to reverse, overrule and remand. The Court has overruled itself over 200 times in its history. The approach of seeking a ruling which would reverse or overrule Roe v. Wade is therefore plausible. But, the history of the present Court and the efforts of pro-life advocates to achieve this objective have failed miserably. Why? Horribly absent from the legal arguments of pro-life lawyers is a direct frontal assault on the unconstitutionality of the Court’s lawmaking power. The Court’s powers are defined and limited by Article III of the Constitution. Enactment of a national legislative tri-mester ban on enforcement of State abortion laws through the judicial mechanism of rendering judgments in cases or controversies is not found among those powers. The tri-mester formula in Roe is the essence of such an enactment and the exercise of legislative power. The Court’s opinion and judgment is written as if it were a legislative decree.
Pro-life lawyers have also neglected to defend the law of the Constitution by their meek acceptance of the Court’s claims that it may amend the Constitution’s substantive text itself, as it did in Roe, by writing into that document a constitutional right to abortion. Absent are direct challenges to the Court’s assertion that its opinions are the Supreme law of the land, rather than evidence of that law. Are legal arguments advanced which assert that Supreme Court opinions are merely evidence of law to be judged according to the supreme law of the land–the Constitution itself? Absent are arguments that attack Cooper; that show Roe cannot be good evidence of law because it attacks and nullifies the foundations the Declaration of Independence and the Northwest Ordinance.
Finally, absent are legal arguments which acknowledge that the purpose of the womb, as far as any human law is competent to recognize under the law of Nature, is to foster and not destroy human life. Absent is the proposition that State legislators enacted their respective State anti-abortion laws on the basis of the law of nature. Absent are arguments establishing that no woman therefore has a legal right to use her womb to destroy the life which God has placed therein–a limit established by the law of nature and recognized by the consent of the people through their representatives in State law.
How is it that lawyers have not understood that the law of nature has legal force and effect by its recognition in the Declaration of Independence and Northwest Ordinance, recognition in Congressional State admission statutes, and enactment of a corresponding statutory right to life into State law? Pro-life lawyers have done a legal disservice to their clients by failing to challenge the lawlessness of a judicial body in declaring a right regarding human life that is contrary to the law of nature itself. This is also a moral failure because it reflects a blindness to the popular claim of civil government, yea, even a single branch thereof, that its opinions can supercede the unalienable right to life which God embedded in the law of nature and the people adopted into statute law a right and law which no man, branch or government has the power to nullify.
The second remedy for a lawless judicial decision, which should be considered alongside arguing for reversal, is to demand that the executive branch at the State and federal levels refuse to enforce the lawless decision. All executive officials must take an oath of office which swears fidelity to the Constitution, not fidelity to the judicial branch of the federal government created by the Constitution. It means that the people must call upon the Governor of their State to look into the State’s statute books and determine whether State legislation contains an anti-abortion provision which, but for Roe v. Wade, would now be enforceable. If such legislation exists, then the people must demand that the Governor direct that his or his executive resources be put to the enforcement of that law.
Likewise, the people must demand that their local County prosecutor, to the extent he or she may have jurisdiction to bring indictments for violation of State law, likewise make the prosecution of abortion offenses a priority. If the State does not recognize the crime of abortion, then the people of that State should prevail upon their legislators to articulate the offense and place it in the criminal code. If the Attorney General of the State is of the opinion that Roe is law, then the people should seek to remove the Attorney General through the regular and established means of recall or election.
In practice, this means that when State prosecutors prosecute persons practicing abortion, and a federal judge issues an injunction against such a prosecution, that the people must call upon the President (and all Presidential candidates) to refuse to call out the United States Marshals or other federal executive enforcement officials to enforce that injunction. It means that when State executive officials commit those convicted of abortion to the State’s penitentiaries and a writ of habeas corpus is sought in a federal district court, that the President order his Marshals not to enforce the writ if granted.
Abraham Lincoln was very cognizant of this responsibility and stated with clarity his views in a speech which he gave during his famous debates with Senator Douglas in and around Springfield, Illinois, in 1858. Lincoln’s view in this matter was expressed with respect to the Dred Scott case, a case which Lincoln considered an abomination. In his speech at Chicago dated July 10, 1858, he stated his view on the authority and duty of the federal executive branch to faithfully discharge its constituted powers pursuant to its oath under the Constitution. Lincoln does not consider that the executive branch of government is an administrative division or department of the Supreme Court or of the Federal Judiciary.
Lincoln fondly quotes President Jackson’s assertion “that the Supreme Court had no right to lay down a rule to govern a coordinate branch of the government, the members of which have sworn to support the Constitution as he understood it.” Then turning to the Dred Scott case specifically, he says that while the parties before the Court are certainly bound by the judgment of the Court, that by the same token the Court’s jurisdiction merely extends to the parties and their opinions are not to be taken as general legislation covering all persons under all circumstances no matter if they are even similarly situated to Dred Scott. Lincoln is emphatic when he says about the Dred Scott decision, “all that I am doing is refusing to obey it as a political rule.”
Thus, Lincoln criticizes the shameful argument of Judge Douglas–that the executive and the legislative branches are bound by the opinions of the Court with respect to non-parties or that in some way the opinions of the Court form a political rule of actions governing the other branches of government. Lincoln’s view is simply that each branch will do what it can to have the Court change its mind. Notice that Lincoln doesn’t give the obtuse Republican and Democrat response that the Supreme Court has spoken and this settles all discussion among the other branches.
In all elections, the pro-life community should have but one political litmus test will this elected official stand against the lawlessness of Roe in whatever jurisdictional capacity they enjoy? It is well past the time to go beyond the legally meaningless and politically impotent “Are you Pro-Life?” test. The Republicans have sold that snake oil to gullible pro-lifers for countless elections (and then ignored them thereafter). It is well past time for adoption of the “Are you Pro-Law?” test. The fight is over law first, then life.
Third, what can a State Supreme Court do? Many state legislatures are adopting state laws attempting to navigate the fringes of Roe while providing some measure of protection for the unborn. Where a state law is the subject of litigation and comes before a state Supreme Court in a case or controversy, that Court will be required to consider the impact of Roe and its progeny on the state legislation. Though most litigation will proceed to federal court, a State Court may find it present with just such an issue. A opinion on this point might read as follows:
Petitioner seeks to enjoin Public Act x of 2003 on the basis that its prohibition of abortion during the third tri-mester and regulation during the second contravenes the constitutional right to an abortion affirmed in Roe v. Wade. The statue in question prohibits abortion upon a partially delivered child during the third trimester and does not provide an exception for the health of the mother. We begin our analysis with an examination of the Constitution itself. We are unable to identify the right to an abortion purportedly contained therein and conclude that it is not guaranteed or secured by that document. Second, the right does appear in Roe v. Wade. An examination of that opinion shows that the Court created a tri-mester scheme which is at issue here. We find however, that the Court’s trimester scheme is the exercise of a legislative, not a judicial power and for that reason is not a Constitutional holding in that the Supreme Court is not extended a legislative power. We decline to follow that holding.
Third, we note that the Declaration of Independence establishes the principle that the States in this Union, including this State, are created for the purpose of securing the unalienable rights of the people. A review of the history of the framing of this state’s constitution and government and the legal principles articulated in the Declaration which are equally binding upon all States in all respects whatsoever, firmly establish that the right to life is among those guarantees which are unalienable and God given. A like review also establishes that the right to abortion finds no such corresponding legal footing. Since the principles of the Declaration of Independence regarding the inalienability of the right to life was recognized (though perhaps weakly) by the legislature in the statue at issue, we are duty bound to sustain the Act with due regard to these principles and their legally binding requirement. See also the Northwest Ordinance of 1787 to the same effect.
We are reminded by the dissent that the decisions of the Supreme Court according to Cooper v. Aaron are the Supreme law of the land and that we as state officials are bound thereby. A review of that case certainly does stand for the afore stated proposition. We decline to follow it, however, for the following reasons. First, opinions of the Supreme Court are not the supreme law of the land. We find not one iota in Article VI which establishes any such supremacy. Second, court opinions by and large (including the one we now publish) are not law in the first place as they do not bind any but the parties before them and are not rules of general applicability binding the public at large as does legislation. It cannot be doubted that the Article III power to review cases and declare acts of the legislature unconstitutional is not a power to establish laws of general applicability. The judicial power is not the power to create rights which contradict the law of nature. Whether it is the power to elevate statutorily unarticulated God-given unalienable rights to a federal constitutional status, however, is not before us. But third in any event, our judicial oath binds us to support the Constitution of this State and of the United States, not to support the opinions of the Supreme Court. This later mandate we cannot find written
therein. Thus, we aim to keep our oath of Office to support these Constitutions against contrary judicial opinions.
The dissent further objects to our course here today on the basis of stare decisis the principle that courts should stand by previous decisions and not disturb settled matters. We affirm stare decisis, but we reject judicial supremacy. Judicial opinions are evidence of law. Roe is not good evidence, however, because it is legislative in nature and fabricated a right from a wrong. Therefore, the rule of stare decisis would have us stand by the rule of law first and then decisions based upon the rule of law thereafter. Since Roe does not stand upon the rule of law, the doctrine does not apply.
Finally, the dissent warns that our decision here today will unravel the entire system of law in this Country and inject uncertainty into Supreme Court cases. The dissent is correct to show concern for our system of law. We too are concerned. The practice of regarding Supreme Court opinions as the equivalent of the Constitution’s sole and exclusive meaning has been the central force in subjugating the rule of constitutional law to the will of a majority of the Supreme Court. We can think of no greater destructive force marshaled against the rule of law than to place all power of constitutional construction is one body alone and make the other coordinate, equal and independent branches of the federal government kowtow thereto, or to bind the state governments to decisions upon principles foreign and hostile to the very foundations upon which they are duly erected by the People for the security and happiness of this and future generations.
If the state executive is of a different view than the majority of this Court, then his or her independent authority to execute or refuse to execute the statute at issue is not herein questioned. We are confident that the People will ultimately decide which rule will prevail if not unnaturally stripped of their ultimate political authority by the unilateral dictates of any judicial body. That matter, however, is not now before us.
A federal judge could also adopt this type of opinion, but would also have to address the notions of mandamus and superintending control as a subordinate judicial officer in the federal system.
The fourth remedy for a lawless judicial decision which should be considered alongside of arguing that the law should be reversed or overruled, demanding that current State and federal executive officials should refuse to enforce a lawless decision, and persuading state Supreme Courts to uphold the abortion laws of their states still on the books, is to hold the judicial malefactors themselves accountable for their lawlessness.
That the slavish doctrine of judicial supremacy was bound to come cannot be denied. Such is human nature unchecked by law. While such a doctrine was bound to come, woe to those by whom it comes. All things being equal, it would have been better for Justice Blackmun in particular, Roe’s principle architect, to have had a large millstone hung around his neck and to be drowned in the depths of the sea than to have suffered him to lead this country away from the Constitution’s central legal object the security of every man’s life and the legal injunction against its depravation without due process of law. But all things are not equal. Summary execution is harsh. The Justice’s hypothetical execution would have been lawless. He would have been deprived of his life without due process of law. The Justice should rather have been subjected to an impeachment trial and afforded due process guaranteed him. How much more then ought the unborn be guaranteed such protection and process? The Constitution requires due process of law, not due process of informed consent, 24 hour waiting periods or parental consent. It requires this for the unborn’s security. Apparently, not even pro-life attorney’s think due process is good enough.
If the Court has lead us away from the rule of law, then they must be cut off through impeachment of its chief charlatans. It is better to replace them with honest justices who recognize their limited authority– limited by a higher written constitutional rule– then to hypocritically defend the Court as a landmark of western civilization’s testimony to the rule of law. Roe is no landmark of a civilized society. The holding is an adornment on the tombstone marking the Constitution’s prior death in Cooper.
The Constitution recognizes that impeachment is the job of the Congress. Thus, every election for any member of Congress should have a political litmus test will this candidate move to hold the Justices accountable to the Constitutional limits on their power through the impeachment process? Whether the candidate is or is not pro-life is not the controlling issue as we have falsely believed.
The controlling issues are whether or not any candidate for a Congressional office will:
1. Declare that Roe v. Wade is an unconstitutional judgment usurping legislative power;
2. Promise to hold Congressional hearings on the legal dimensions of the “good behavior requirement;” and
3. With respect to the House of Representatives, promise to consider Articles of Impeachment against Justice Stevens and Justice O’Connor, for their repeated and unwavering judicial defiance of the Constitution’s limits on judicial power through post-Roe decisions which reaffirm that Roe is Constitutionally mandated as a matter of due process;
4. Assemble the evidence into an Article of Impeachment which indicates that such open defiance of the Constitution fails to meet its good behavior requirement. (Justice Stevens is the most senior member of the Court’s pro-abortion majority. Justice O’Connor also has longevity. I would not fault Justices Souter, Kennedy, Ginsberg or Breyer at this time because of their relative junior status and because the good behavior requirement ought not be invoked except in more severe cases where the defiance of law is fixed and certain from the record); and
5. With respect to the United States Senate, demand that senatorial candidates promise (i.e., ask them to take the “Pro-law/Pro-Life Pledge to America”) to promptly receive any Articles of Impeachment from the House and judge the matter as Judges, not as political Senators, on the basis of the evidence submitted by the house managers accordingly. (Then watch what they say and do and take action the next election.)
In other words, the litmus test for congressional candidates is to demand that the House prefer Articles of Impeachment, and that the Senate will consider same as provided for in the Constitution.7
However, if the President and Congress follow the whoreson legal tradition of regarding the Court’s opinions to be the master of the Constitution itself a tradition begotten by the Supreme Court in Cooper and blindly propagated in our American Bar Association accredited law schools–then our country will continue to stagger behind this blind elected rabble into a slavish pit. The tradition is slavish because the tradition perpetuates an obsessive way of nationalist thinking about Constitutional law which renders irrelevant. The pit is also slavish because the tradition renders all questions regarding the Constitution’s meaning a function of the judicial branch alone without regard for the Constitutional checks and balances of the other two branches on all questions of Constitutional law.
Of the Congress and president may try a political diversion a national constitutional sham. They may propose a Constitutional amendment. Constitutional amendments, however, are not “checks and balances” for judicial malconstruction thereof. The purpose of an amendment is to add that which is missing, not check judicial abuses in the construction of the instrument. Impeachment checks abuses, not amendments and the Congress and the President should stop using proposed amendments as a Constitutional remedy for judicial abuse when the Constitution already provides for the remedy of judicial impeachment. If the President and Congress continue to insist on an amendment as a means to “remedy” judicial decisions, then they too have broken faith with their oath to support the Constitution itself. Let our friends and enemies be counted.
* Copyright © 2004 Kerry L. Morgan. Used with permission.
7. For a fine discussion of pre-constitutional and extra-constitutional limitations which Courts have invoked in regard to legislation that offends the law of nature and which have the same force where applied to judicial decisions likewise offensive see Haines, The Law of Nature in State and Federal Decisions, 25 Yale L.J. 617, 628-636 (1916); Judicial Review of Legislation in the United States and the Doctrines of Vested Rights and of Implied Limitations on Legislatures, 2 Tex.L.Rev. 257 (1924), 3 Tex.L.Rev. 1 (1924); The Revival of Natural Law Concepts (1930).