The Right to Life and the Restoration of the American Republic

The Declaration of Independence and the Constitution of the United States inaugurated not only the American experiment, but also one of the great economic booms in history. Americans moved West and South, labored North and East to till the soil, build roads, finance banks, invest in new technologies, discover new methods of farming, mining, and manufacture. “We made the experiment,” Lincoln wrote during the prosperity of 1854. In America “we proposed to give all a chance.” Now “the fruit is before us. Look at it — think of it. Look at it in its aggregate grandeur, of extent of country and numbers of population — of ship and steamboat and rail.”

In 1854, almost fourscore years had gone by since the Founding, and nearly as many years divided the abject poverty of Thomas Lincoln from the prosperity of his son Abraham, the “lone Whig star” of Illinois. In twenty years of hard work before 1854, Lincoln had been preoccupied with personal advance in law and politics, during which time he had focused on the great issues of economic nationalism: the tariff, the National Bank, and internal improvements. It is true that he was only one among thousands of apostles of national development and economic growth; but he was utterly devoted to their cause.

In 1853, all America basked in the glow of a prosperity Americans took as their just deserts. The period stretching from the inauguration of James Monroe in 1817 through the early 1850s has gone down in American history as the Era of Good Feeling and of Manifest Destiny — an era during which, despite the great perils faced by the infant nation at the turn of the century, America had conquered a continent and established her independence of Europe. The new nation had finally settled down.

Then, out of the Great Plains, the Kansas-Nebraska Act of 1854 blew in upon American politics with the force of a tornado, sweeping aside the economic issues paramount in the immediate past. The old Whig Party disintegrated under the pressure of the new politics, and so in all but name did the Old Democracy, the party of Jefferson and Jackson — both parties swept aside by the gale force of a single moral issue, or what our pundits today would call a social issue. That issue, the extension of slavery to the territories, led ineluctably to the great national debate over the “unalienable right to liberty” of the black slave. It was neither the first nor the last, but it was, up to that time, the greatest debate over the first principles of the American Republic.

 

At first, Americans — Democrats and Whigs alike — refused to believe that the work and wealth of recent decades, not to mention the pocketbook politics of the era, would be swallowed up in a moral struggle over a single issue. But, in opening all the Western lands to slaveholding, Kansas-Nebraska shattered the spirit of the Missouri Compromise of 1820, which had limited slavery to states south of 36°30′. If it were true, as Lincoln would later say, that eventually the nation must be all slave or all free, there could be little doubt in which direction the new act was taking us.

In the words of one distinguished historian of the period, Professor Gabor Borritt of Gettysburg College, Kansas-Nebraska shook national politics like Jefferson’s “firebell in the night.” So abrupt was the transition from preoccupation with economics and national security (“Manifest Destiny” and “Western Lands”) that Abraham Lincoln, himself one of the most knowledgeable of Whig leaders on tax, tariff, and banking issues, abandoned further discussion of them. After 1854, he became almost mute on economic issues, claiming in the year he stood for President that “just now [tax, tariff, and financial affairs] cannot even obtain a hearing . . . for, whether we will or not, the question of slavery is the question, the all-absorbing topic of the day.”

Today, six years after President Reagan’s first victory, we are far along with economic expansion and just as far along with rebuilding our national defense. Financial markets have risen to new highs. Employment levels and new business formations have reached new peaks. In Libya and Grenada we have successfully, if ever so cautiously, tested our willingness once again to use force in defense of our national principles and interests. Politicians of both parties will speak as if they expect Americans, riding the wave of new prosperity at home and restored prestige abroad, to continue to focus on economic and defense issues as they have for a generation. As Vice President Bush declared in an interview in June, “Today, people vote their pocketbooks.” We shall see.

For I believe that today the American people are prepared to put their pocketbooks back into their pockets. I believe that Americans once again are preparing to ask fundamental questions, about life and death, about our special purpose as a nation, and about the first principles and fundamental law by which, as a nation under God, we have dedicated ourselves to live. I believe that national politics during the late 1980s and the 1990s will be dominated by the great constitutional, moral, and social issues of our time.

Chief among these issues will be the right to life. Thirteen years ago, in Roe v. Wade, the Supreme Court overthrew the common law of centuries and the statute law of fifty states, authorized abortion on demand, and thereby severed the child-about-to-be-born from the Declaration of Independence. It was in the Declaration, the organic law of the American Founding, that the Fathers of our country proclaimed the self-evident truths of our fundamental moral and constitutional law: that all men are created equal, and that all men are created by God with the unalienable right to life, liberty, and the pursuit of happiness. It was this original charter of the nation that the Supreme Court violated in Roe, without even the mandate of an election or a vote in Congress.

Five thousand days and twenty million lives later, abortion on demand has buried a nation of children as big as the whole of Canada. But far from resolving the issue of the right to life, as the Justices intended, the Court has stirred up all America and ignited the moral tinder deep in the souls of our countrymen. The Court, by creating a great debate over our fundamental law and essential character as a people, has guaranteed that abortion will surely sweep away all more mundane political considerations.

I suggest not merely that the issues of slavery and abortion are historically analogous. Rather I say that they are, in a crucial sense, the same issue. Both are but particular cases of the recurring challenge to the first principles of the American Revolution, which forbid the violation of the God- given rights of any person, no matter how convenient such a violation might be for some powerful individual or faction, or even a majority.

In the normal course of our politics we do not experience this challenge in its starkest terms. Our fundamental law, our fundamental purpose as a nation, is not fully articulated in the positive law by which we govern our daily affairs. The Declaration of Independence, in which our nation’s fundamental principles are stated, is not phrased in such a way as to give perfect guidance to the resolution of everyday political disputes. In the normal course of events the American people are content to let the Declaration’s unalienable rights be secured by the more intricate structure of the Constitution, which by the genius of the Founding Fathers transformed the play of political interests into a dynamic balance wheel of human and civil rights. Nevertheless, the Declaration gave birth to America as an independent nation and best expresses our ultimate reason for national being.

From time to time, our ordinary politics fails us in ways too dramatic to ignore. An impasse develops in the constitutional process. A weakness shows up in the architecture of liberty. Our positive law (including even the Constitution, or its interpreters) can fail in some critical way to uphold the first principles of our national Founding. It is at such times that it becomes necessary for Americans — who seem now, as they seemed in 1854, too concerned with progress and payrolls — to reconsider the organic law written in their hearts. It is then that American politics again becomes a struggle over the meaning of the Declaration of Independence.

In our time, most leading politicians and intellectuals argue that such philosophical struggles, turning ultimately on moral and religious questions, should be excluded from American politics. With Senator Stephen Douglas, Lincoln’s great opponent, who held that Kansas-Nebraska and the Dred Scott decision (1857) made the black man forever a slave in America, they hold that the Supreme Court can settle and has settled forever the abortion issue. They are content to accept, paraphrasing Judge Taney, that the child in the womb has no rights which Americans are bound to respect. They argue, with Supreme Court Justice John Paul Stevens, that only “secular interests” are fit subjects of national debate. Some even argue that the resurgence of religion and moral issues in American politics is by a passing fad, safely scorned by sophisticated pragmatists concerned with the weightier matters of wealth and weaponry.

These opinions are as unsurprising as they are unconvincing. What we hear rolling across the Potomac are the hollow, haunting echoes of the great slavery debates of the 1850s. For decades the battle over slavery had been stayed by the timely intervention of grave Whigs and eloquent Democrats who foresaw what passions would be loosed when men ceased to struggle for gain and ground and sought instead to live faithfully by the Divine standards Americans had set themselves in the Declaration. Webster and Clay, Calhoun and Douglas, prudently had sought to guide the energies of the people into economic growth and westward expansion, to mitigate, even to avoid the supervening moral and religious issues raised by the debate over slavery. The remarkable thing is how successful they were for so long in convincing Americans that slavery could be countenanced if its extent could be compromised.

But the insurgent noise would not be silenced. For the muffled murmur throughout the land was the sound of the slave, his tortured breathing rustling the pages of the Declaration of Independence, scaring up from the dry parchment the great truths placed there by Jefferson. For the needs of nation-building, for the sake of a union between slave and free states, slavery may have been legalized in the Constitution. But it was the Creator, as the Founders proclaimed in the Declaration, Who gave men the unalienable right to life and liberty. This contradiction, like a house divided, could not stand.

Just three years after the Kansas-Nebraska Act, the Dred Scott decision gave meaning to Lincoln’s warnings; it declared the U.S., in effect, a slave nation. Dred Scott held that the black slave was not a person under the Constitution, and it made inviolate the property rights of slave owners. In the very next election, the nation responded by choosing a President who had proclaimed Dred Scott unbinding as a “rule of political action” in virtue of the fundamental law of the Declaration and the power of Congress to prohibit slavery in the territories. Six hundred thousand men and boys, the flower of American youth, perished in a war over the meaning of a religious and moral principle — or, in the words of “The Battle Hymn of the Republic”: “As He died to make men holy, we shall die to make men free.”

There is then no need to be surprised that in the battle over Roe v. Wade — wherein we deal not only with life and liberty, as in Dred Scott, but with life and death — moderate men and women should wish to put the fundamental issues aside. There is no reason to be astonished that so many leading intellectuals wish to believe that the Supreme Court has settled the matter. Nothing should be easier to understand than that the political, business, and academic establishments are embarrassed by the issue and affect to scorn those who raise it. After all, if the modern followers of Lincoln are right, no material bounty America bestows on her people or the world can excuse her crime. If the party of Lincoln is right, there is only one road to national rededication: to fight the evil of abortion until it is extinguished, a fight that may make the divisions of the 1960s, from which we are barely recovered, look like a family reunion.

One way of scorning the issue — one popular tune to whistle past the graveyard — is to deride abortion as a “single issue” pursued by fanatics to the detriment of the common good. Those who take this tack understand neither the issue nor their countrymen. The unalienable right to life is not, for America, a single issue, but a first principle, a self-evident truth established at its Founding. Nothing is more striking about American history than our willingness to take principles of truth and right seriously. Americans now that neither blood, nor culture, nor even locality is what binds us together. Uniquely among nations we are bound together and defined by our founding principles. It is the pragmatic politicians of the pocketbook who do not know their countrymen.

July 4, 1776, was an event of worldwide significance, not because a new nation was founded on the shores of the Atlantic, but because a new nation, the very first of its kind, was founded “under God,” begotten, as Thomas Jefferson wrote, according to the “Laws of Nature and of Nature’s God,” a nation dedicated, in fact, to a religious proposition, a principle of natural theology. Consider again the phrasing: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,” to life, liberty, and the pursuit of happiness. This proposition, the great Emancipator proclaimed, is “the Father of all moral principle” among Americans, the animating spirit of our laws. By reason of this founding principle, Lincoln called his countrymen “the almost chosen people”; and it was Jefferson himself who proposed that the national seal portray Moses leading the chosen people to the promised land.

The Founders’ principles of equality and unalienable rights are characterized by their universality and claim to Divine sanction. The universality of the principles makes it clear that the Founders did not mean that all human beings are or ought to be equal in all respects — height, weight, beauty, wealth. They meant instead that no person has to another the relation God has to him: Thus the rights enumerated in the Declaration are God-given, and hence “unalienable.” Neither the weight of tradition nor the exigencies of statecraft can rationalize the false claim that the unalienable rights of the Declaration are a gift of the state or of the people. As Professor Harry Jaffa would put it: No man has a natural right to rule over any other man, as God does over man; thus a man may rule over another, his equal, only with his consent. This is the essential meaning of our founding law. If there were ever any doubt that we are bound by it — and the Declaration is still put at the head of the statues-at-large of the U.S. Code and described therein as organic law — Lincoln’s testimony and the general assent given it by Americans then and later should have laid that doubt permanently to rest.

But while most Americans take the Declaration seriously, we do have a tendency to fix upon its assertions of equality and liberty, quickly passing over its guarantee of an unalienable right to life as if it were merely a glittering generality. The truth is that life, liberty, and the pursuit of happiness are a logically ordered sequence. The rights to liberty and to the pursuit of happiness derive from every man’s right to his own life and are meaningless without it.

Life precedes liberty in the words of the Declaration because liberty was made for life, not life for liberty. If the right to life is omitted, then liberty is a right contingent upon force and without moral substance, and the Declaration is a nullity. Moreover, it is by reason of the unalienable right to life that all men hold the right to the fruits of their labor. A free society dissolves into an absurdity if the right to life is denied.

Abortion, like slavery, allows equals to rule over equals without their consent, depriving the child in the womb not only of the right to liberty, but of the right to life as well. But there is a disputed point: Do unborn children hold these rights? There can be no denial that they have life and have had it from the very first moment of conception: That is true in medicine as in law. But what is more important is that, as our fundamental law affirms, they hold life as a gift of the Creator — Who “created” them “equal” and “endowed them” at creation “with certain unalienable rights” — from the moment of conception. Creation does not occur at the second trimester, or at the third, or at viability, but at the very beginning of life. The usual arguments about viability, intelligence, pain, quickening, meaningful life, or unwanted children are as irrelevant as earlier arguments that the poor, black slaves were better off under the rule of a benevolent master. Under the Declaration, under the Divine and natural law by which we have promised to live, the child about to be born, no less than the black slave, holds rights unconditional upon the convenience of others, rights that cannot be altered because other men place a lesser value on the life of a child in the womb.

It is no use, in extenuation, to invoke the pluralism of opinions, or the absence of consensus, as if, in the struggle over Roe v. Wade, all disagreements were merely part of a friendly historical debate; as if no lives were at stake and there were no ultimate judge to whom to make an appeal. The organic law of the American nation and the Divine law prevail over all positive law, and thus over the litigious subtleties of politicians and judges.

Our task is easier than Lincoln’s, and its strain on the country will be less. In the Constitution Lincoln faced an explicit, if time-bound, sanction for slavery, which is lacking in the case of abortion. Each in its own time, slavery and abortion have masqueraded as the law of the land; and the abortion masquerade is utterly transparent. There is an inescapable absurdity in the Supreme Court’s argument that the same Fourteenth Amendment that made the black slave a person can be used to deny the personhood of the child about to be born. In 1868, when the Fourteenth Amendment was passed, 28 of the 37 states held abortion to be a criminal act, even prior to quickening. (Over the next 15 years seven more states made abortion a crime. By the time of Roe v. Wade, in 1973, nearly all the states had criminalized abortion. There was a national consensus on abortion: that it is wrong.) In view of the near universality of the laws against abortion at the time the Fourteenth Amendment was passed, there can be no doubt about its intent or the meaning of the amendment today. The Court’s decision in Roe v. Wade had absolutely no basis, literal or implied, in the Fourteenth Amendment. If the Fourteenth Amendment calls for anything, it calls for reversal of Roe v. Wade.

Roe v. Wade may for now be a legal decision of the Supreme Court; but it is unlawful in the full sense of the word. It is without any identifiable source of authority in constitutional law. In the light of logic, the moral law, and American history, Roe v. Wade is absurd; it comes to just nothing — nothing but “raw judicial power.” It requires no irreverence for the letter or the spirit of the Constitution to declare that the decision must be overturned, by a subsequent Supreme Court decision if possible, but if not, then by constitutional amendment or congressional act. There is in the Federalist Papers, the original handbook of constitutional interpretation, a clear warrant for such a rebuke of the Court. Federalist Number 81 declares that if judicial “misconstructions and contraventions of the will of the Legislature” do create constitutional defects, there is a constitutional remedy. Even if the legislature cannot “reverse a [judicial] determination once made, in a particular case,” it can “prescribe a new rule for future cases.” Above all, and despite recent judicial imperialism, the three branches of the Federal Government are co-equal, and all subordinate to “the people” who “ordained” the Constitution to fulfill the promises of the Declaration.

Yet this argument does not end the debate. For the ultimate charge against those who would push the right to life to the top of our political agenda is that they are mixing religion and politics, trying to impose a single set of religious values on the nation. But the link between religion and American politics is indissoluble, for, at the very beginning, in the Declaration, the nation was founded upon the principles of natural religion; it would collapse without them. Jefferson himself, often falsely described as a completely secular man, acknowledged this link, writing that “The God Who gave us life, gave us liberty . . . Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?”

Those who fear the intrusion of religion into politics are not all wrong. We have been well served by the consensus that excludes sectarian passions from ordinary political disputes. But when fellow Americans of good will ask us to grow quiet on the painful but fundamental issues of abortion, prayer, or pornography, for fear of starting a divisive debate over religious and moral principles, they make a rule of thumb into a rule of life. The truth is not that religion never belongs in American politics. The truth is instead, as Lincoln argued that religion belongs in American politics only when our politics have been forced back upon first principles.

By nature Lincoln was as much politician as prophet. He was a moderate and judicious man, certainly not inclined to fanaticism. Neither was he a natural candidate for a martyr’s crown. But when the crucial issue was joined, Lincoln exposed the counsels of moderation for the well-meaning sophistries they were. And he died a martyr.

Some of us, dreading the great moral conflict Lincoln faced, might have sided with Douglas. But now, more than a century later, who laments the reversal of Dred Scott or would rewrite history to keep the slave in chains? Who now holds up the memory of Chief Justice Taney for the honor of the ages? Who now wishes that Lincoln had used the Court’s decision as an excuse to turn to other matters? Who can ever forget what Lincoln, against all polite opinion, and borne up by his faith in a just God, did for free men?

We know it intuitively. It is the Declaration’s principles and Lincoln’s example we must follow. Certainly not to violence. There will be no need, for, as I said at the outset, the law to which we appeal is inscribed on the hearts of all Americans, more deeply now than ever. The abyss of civil war does not lie before us. If we fail, we will have been overcome by nothing but false opinion and the petty demon of polite society — because we are afraid of the elite consensus and the inelegance of moral commitment, afraid to take on the establishment by naming the national sin, unwilling to bear witness to first principles while the party of prosperity is going so well. But to name these considerations is to know how shameful it is to hold back. We must be bold; so that for now and for all time to come, the unalienable rights to life and liberty, the promises of the Declaration of Independence, shall not perish from this earth.

Lewis E. Lehrman

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Lewis E. Lehrman is a noted writer, historian, philanthropist, business leader, and conservative activist.

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