Rule of Lawlessness: Why We Don’t Need the Supreme Court to Overturn Roe v. Wade

Today, in the great debate over the Constitution, we are faced with several unresolved but fundamental issues: Are the legal positivists and relativists right when they declare the American Constitution to be essentially what the legislators and Supreme Court justices say it to be? Are Supreme Court rulings and statutes unappealable even if such “law” plainly violates not only the Constitution but also the natural law of the Declaration of Independence? Moreover, is it true, as relativists argue, that original intent —the actual meaning of the framers —is undiscoverable in the history of the Constitution, or even by a close reading of the document itself? And, further, are strict text-based rules of construction irrelevant, as liberal “noninterpretivists” imply, when finding and applying the fundamental law of the land?

Or, on the other hand, are Jefferson, Madison, Washington, and Lincoln right when, affirming the Declaration and “the laws of nature and of nature’s God,” they “hold these truths to be self-evident, that all men are created equal”; that all men “are endowed by their Creator” with the inalienable right to life . . . and to liberty? Did the founders thereby imply that any law or judicial ruling which violates these inalienable human rights is, by its nature, unenforceable, indeed unconstitutional since, according to the very words of the Declaration of Independence, it is primarily “to secure these [inalienable human] rights” that “governments are instituted among men”; further, that governments hold only “just powers derived from the consent of the governed”; and finally, “that whenever any form of government becomes destructive of these ends [namely, the inalienable right to life and liberty], it is the right of the people to alter or abolish it, and to institute new government”? It seems that the people are constrained by the Declaration of 1776 to consent only to a government of just powers and just laws.

We must never forget it was not only Thomas Jefferson, but also James Madison, the Father of the Constitution, who held the Declaration of Independence to be “the fundamental act of union” —the organic law in virtue of which the union of the colonies was consummated and the American nation inaugurated. Thus it is that the Declaration of Independence leads us to the original intent of the Framers of the Constitution; for the Declaration is the first part of the organic law which enables us rightly to interpret and apply American constitutional principles.

Based as it is on self-evident principles of natural justice, and given its preeminence in American organic law, the Declaration suggests rules of constitutional interpretation which are too often ignored by contemporary constitutional scholars, who focus narrowly and exclusively on the positive law of the great charter elaborated in 1787. But these legal positivists have one hard historical nut to crack: the Declaration was, and is, placed first in the United States Code of Laws —even ahead of the Constitution. It is explicitly described therein as “organic” law. One need only look to the position of the Declaration in The Public Statutes at Large of the United States of America 1-3, 1854; the Federal and State Constitutions . . . and Other Organic Laws of the United States, 1877; the Revised Statutes of the United States 3-6, 1878; the United States Code XIX-XXII, 1940.

Thus Lincoln was clear, correct, and compelling when, in 1863, he said “four score and seven years ago” —that is, in 1776, the year of the Declaration— “our Fathers brought forth a new nation.” (He did not say three score and 14 years ago —or 1789, the year of the Constitution.) Lincoln emphatically called himself a conservative because it was the first principles of the Declaration, our “ancient faith” as he called it, which he sought to conserve —or rather to restore. And this of course is what he did. His legacy looms large in the Thirteenth, Fourteenth, and Fifteenth amendments, not to mention the Congressional Statute of 1862 which overthrew the Dred Scott Supreme Court and prohibited the extension of slavery exactly as the Republican platform of 1860 had pledged to do.

If it is correctly argued by legal scholars and Supreme Court justices that the Fourteenth Amendment incorporated certain of the Bill of Rights and thereby applied them to the States, so it is also beyond a reasonable doubt that the Declaration of Independence was truly incorporated into the Constitution first by the Founders of our country, then by the first American Congresses, and finally by the language of the Fourteenth Amendment.

Adapting Lincoln’s words, drawn from his patient struggle for the inalienable right to liberty in the 1850s, it is fitting therefore to ‘Way that the “durable” moral issue of our age is the struggle for the inalienable right to life of the child-in-the-womb, and thus the right to life of all future generations. This is no ordinary issue at law but, instead, it is the ultimate stake of an enduring social order.

Whether or not we resolve it immediately, the issue of abortion and the inalienable right to life is now joined. And, sooner or later, it will be resolved. More than 130 years ago Americans were faced with a similar choice between the positive right of property of the white man in a black slave (a non-human chattel) —or its opposite, the inalienable right to liberty of that same black being (a human person). Similarly, the issue today shall be resolved either for the positive right to abort a “foetus” (a non-human chattel); or for its opposite, the inalienable right to life of the child – about-to-be-born (a human person).

But no matter when these issues are decided, surely it was never reasonable to suppose that, under the American Constitution, all persons might be endowed with the inalienable liberty to hold black persons as slaves —and that those same black persons held as slaves might be endowed with the inalienable right to liberty. Between two mutually irreconcilable liberties, a nation dedicated to inalienable rights must choose. Who among us today would hold that one person can have the right to take another innocent person’s life (by abortion) and, simultaneously, that all persons are endowed with the inalienable right to life? Between two irreconcilable “rights,” only one can be rightly chosen.

It is true that some Supreme Court justices and legal positivists maintain that the law is only what the Supreme Court says it to be. Others in the “legal realism” tradition of Justice Oliver Wendell Holmes declare the law to be what the “sovereign” people vote it to be. But can it truly be lawful in the American regime for the people, or the justices, to decide and vote for the permanent chattel right to hold the black man as property (once called by the Douglas Democrats “popular sovereignty”), or to decide for the chattel right to dispose of property in the child-about-to-be born (now called “pro-choice”)? If judicial supremacy, majority rule, and “popular sovereignty” lead to an extra-constitutional decision overthrowing the inalienable human rights of the Declaration, are we to suppose there can be no further appeal under the Constitution of the United States?

This is the very question one must examine further. It is, of course, a question which shall not finally be answered in the law schools. And this must be so be-cause, in the choice between the natural law (the Declaration of Independence) and legal positivism (adventitious, judge-made law), it is fitting that all American citizens should choose. For, as a nation founded “under God,” ours is a house which, divided against itself, cannot stand. So, it should come as no surprise that we Americans shall again have to answer the question put so poignantly by Abraham Lincoln to his fellow Americans at Cooper Union in 1860: When the issues of life and liberty are at stake, can it ever be right to do wrong? In a just social order, can it truly be supposed that might makes right?

In the answering of this question, and thus also in deciding what is to be done to resolve the issue of abortion, no American should forget the case for Lincoln’s profound conservatism, grounded as it was in the original and animating spirit of the republic, the Declaration of Independence. Lincoln was one of the most persuasive advocates of what the great legal historian, Professor Edward S. Corwin, called the “higher law” tradition of the American Constitution. This tradition suggested that the founding principles of the American regime, according to which the positive law of the Constitution ought to be interpreted, were first and best codified in the natural rights doctrine of the Declaration. In this sense, Lincoln was neither a liberal nor a conservative. Faced with the radical doctrine of the Dred Scott Supreme Court —that the Constitution made slavery permanent in America —Mr. Lincoln argued instead for restoration of the Declaration’s original principle —equality of all persons before the law.

Can it be supposed that the Declaration, the fundamental act of union, which provides the basis for the American people to establish just government —can it reasonably be supposed that this explicit charter of the inalienable right to life may be rightly ignored by Supreme Court justices, congressional legislators, Presidents, law school professors, even the American people themselves? Can one fairly suppose that an expressly stipulated right to life, as set forth in the Declaration and the Constitution, may be set aside in favor of a conjured right to abortion in Roe v. Wade, a spurious right born exclusively in 1973 of judicial supremacy with not a single trace of lawful authority, implicit or explicit, in the text or the history of the Constitution itself?

We find in the Fifth and Fourteenth Amendments that the positive rights to life, to liberty, and to property are upheld precisely in that order. Is it not a biological necessity, if it were not manifestly plain from the actual sequence of the very words themselves in the Declaration and in the Constitution, that human liberty is made for human life, not human life for liberty? Is it to be reasonably supposed in principle that the right to liberty can be safe if the right to life be not secure? And, further, is it to be maintained intelligibly that human life, “endowed by the Creator,” commences at the hand of the same Creator in the second or third trimester of pregnancy, and not at the very beginning of the life of the child-in-the-womb? Are we finally to suppose that the right to life of the child-about-to¬be-born, an inalienable right of the Declaration, the first in the sequence of human rights clearly enumerated among the basic positive rights in the Constitution, may be eviscerated by the Supreme Court, acting alone, without warrant from the American people who did ordain the Constitution and who, alone, are authorized to amend it?

Given the unavoidable consequences of Roe v. Wade, may it properly be concluded that a well-intentioned but overreaching Supreme Court amended the Constitution without the express approval of the American people? In the full light of the resulting holocaust, are we now to yield to legal positivists and judicial supremacists, even to conservative advocates of strict construction, all of whom imply that we must abandon natural law and the Declaration of Independence as the ground of the American Constitution?

The Reversal of Roe

Given the many Supreme Court decisions after 1973 supporting abortion on demand, the question now becomes: How may Americans reverse the Court and prohibit abortion even without a constitutional amendment? Some will of course argue that the Supreme Court has ruled permanently for abortion on demand; that these Supreme Court rulings—according to the Court’s opinion in Cooper v. Aaron of 1958 (echoing Senator Stephen Douglas on Dred Scott in 1858) —are the supreme laws of the land; and, therefore, all Americans must yield their erstwhile principles to current Supreme Court decisions, and in the interest of harmony, be quiet.

One must, of course, respond with respect for the Court: obey a court decision in a particular case, yes; but be quiet about first principles of the Constitution, no, never. And furthermore, one must deny that the Supreme Court can, by itself, permanently decide the supreme law of the land in matters of fundamental constitutional principles. And, as authority for this opinion, one can rely upon President Thomas Jefferson of Virginia and President Andrew Jackson of Tennessee —the founders of the Democratic Party.

It was Jefferson who said, “to consider [Supreme Court] Judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy.” Moreover, he continued, “the Constitution has erected no such single tribunal.” So said the author of the title deeds of American democracy.

A generation later, President Jackson in a dispute with the Supreme Court declared that “the opinion of judges has no more authority over Congress than the opinion of Congress has over the Judges.”

And now, let us linger on Abraham Lincoln who, in the agony of obedience, did defer briefly to the Supreme Court’s decision in Dred Scott, a decision Lincoln nevertheless rejected as a permanent rule of political action. Rendered for the Supreme Court by Chief Justice Roger B. Taney, the Dred Scott opinion of 1857 declared that the black man could, under the existing Constitution, never be an American citizen. Moreover, Chief Justice Taney wrote that the black man was a mere article of merchandise, that the Negro was not included in the language of the Declaration, and that the black man had no rights which the white man was bound to respect. Therefore, as Senator Stephen Douglas argued against private citizen Lincoln in 1858, the earthly fate of the black man had been fitted neatly into the property clauses of the American Constitution, where, instead of a person, the black man had, under a Supreme Court ruling, become a mere chattel — a living mockery of the inalienable right to liberty.

But in 1860 the American people elected Lincoln. Invoking the precedents of Jefferson and Jackson, President Lincoln argued decisively in his inaugural speech of 1861 that “if the policy of the [national] government … is to be irrevocably fixed by decisions of the Supreme Court —the people will have ceased to be their own rulers.” Only a year later came the congressional statute of 1862, which effectively reversed the Dred Scott decision and prohibited the extension of slavery to all American territories. Then came the Thirteenth and Fourteenth Amendments of 1865 and 1868 which overthrew slavery and the Dred Scott Supreme Court permanently.

As one reflects on our first Republican president, one is moved to ask, Who now laments the reversal, by Congress and the American people, of the Supreme Court’s Dred Scott decision? Who now holds up the memory of Chief Justice Taney’s opinion for the honor of the ages? Who now mourns the death of a Supreme Court doctrine which held that the Negro is not a person and never could be an American citizen?

In the present constitutional debate over Roe v. Wade, it is all-important, therefore, to observe that it is the Founding Fathers, the anti-slavery movement, and Abraham Lincoln whom the anti-abortion movement follows. It was Mr. Lincoln who argued that if we abandon our “fundamental Act of Union,” the Declaration of Independence (the very words of which bind the nation in law to the inalienable right to life), then we shall have abandoned the principled ground of our Constitution. And so, following Lincoln, we Americans rediscover today the fundamental law which, 120 years ago, compelled our forefathers to abolish slavery in order to uphold the inalienable right to liberty.

Moved by the Declaration and the intent of the Founders, one must call for reversal of Roe v. Wade in order to uphold the very basis of the Republic itself. For who will deny the truth of Lincoln’s forecast that a nation divided against itself cannot stand? He did not say that the Republic must fall immediately. But he did imply that a nation dedicated to the proposition that all human beings are created equal which also perversely stands against the equal humanity of certain groups (blacks or the child-in-the¬womb) cannot last.

Congressional Prerogatives

This constitutional debate over Roe v. Wade is also a recurrence of the Founders’ inquiry into “the just powers” of American government authorized by the Declaration. During this current inquiry we shall find, as Lincoln did before us, that President Andrew Jackson was wrong when he said that the Courts have no more power over Congress than Congress has over the Courts. For the Constitution does bestow upon Congress much more authority over the Court than it gives to the Court over the Congress.

In Article III, section 2, Congress has the explicit constitutional power to remove Supreme Court jurisdiction of all abortion questions. But nowhere in the four corners of the Constitution can anyone discover an explicit power of judicial review now exercised by the courts over Congress. It is in Article III, section 2 of the Constitution that one discovers the grant of power to Congress to make exceptions to Supreme Court appellate jurisdiction. To Congress alone a full power is expressly given without limitation. Any reasonable reading of the plain words of Article III yields no other interpretation. Thus, “those who [invoking judicial review] argue against Congress’ power to make exceptions to the Court’s appellate jurisdiction find themselves … in an uncomfortable bind. They are forced to deny an explicit power of Congress, granted by express words in the Constitution, in order to protect the Court’s implicit power of judicial review, nowhere even hinted at in the document.” (See Ralph Rossum, Congressional Control of the Judiciary: The Article III Option [1988].)

Can it be supposed that the American people, in open national debate, will sustain such violence to the plain words of the supreme law of the land? On the contrary, any thorough presidential debate over Article III, section 2 will undoubtedly yield the unavoidable conclusion fairly drawn from the Constitution that, as Rossum puts it, ” if Congress truly desires to preclude all lower federal court jurisdiction, it can do so without raising questions of due process, provided only that it  clearly authorizes state court review of those cases.”

For those statesmen who would reform deep flaws in current Court practice, the lesson is that a renegade Supreme Court can be constitutionally curbed by Congress. Congress need only truly desire to do so. It is clear, for example, that Congress could, empowered by Article III, section 2, remove Supreme Court appellate jurisdiction of all abortion cases, remove all federal court jurisdiction of abortion cases, and provide for state jurisdiction in all abortion cases. Congress could then pass a law defining human life as beginning from the very first moment of conception; further that the inalienable right to life is the paramount right of those explicit human rights enumerated in the Declaration and the Fifth and Fourteenth Amendments; moreover, that abortion shall be prohibited in the United states; that any surgical procedure threatening the life of the child-in-the-womb in order to save the life of the mother could be judicially authorized with the express purpose of preserving both lives; that before the surgical procedure could be authorized, a valid motion of the mother would have been filed on the facts to show that the life of the mother might truly be threatened; and that such a surgical procedure would be warranted in a swift and summary court proceeding in which the child-in-the-womb would be represented by a guardian ad litem. Finally, Congress could require that all states pass legislation to carry out the law of Congress.

It would follow that, all preceding court rulings notwithstanding, such a congressional statute would necessarily become the supreme law of the land. Like the crucial precedent of the Congressional Statute of 1862 —which overthrew the Dred Scott Supreme Court decision by prohibiting the extension of slavery to the territories —such an act of Congress prohibiting abortion would lead the way to a constitutional amendment.

The Fourteenth Amendment

Many scholars, deferring to the custom of judicial review, argue that Congress, though it may have the power, should not act under Article III, section 2, to withdraw Supreme Court jurisdiction of abortion cases. What then? Congress, sensitive to the traditions of the Court, could invoke its explicit and indisputable power to make all rules protecting life with respect to persons in the womb under section 5 of the Fourteenth Amendment, just as section 5 empowered the Congress to make all necessary rules to enforce the provisions of the Fourteenth Amendment with respect to persons held in bondage. These provisions, one of the glories of our modern Constitution, explicitly and unequivocally guarantee equal protection and due process of law to all persons living in America —men and women, blacks and whites, including, therefore, the obscure person known as the child-in-the-womb.

Compared to the legalistic plausibility argued by some scholars for Chief Justice Roger B. Taney’s inflammatory opinion in the case of Dred Scott, it is clear that the Supreme Court’s decision in Roe v. Wade had absolutely no warrant whatsoever in the actual words of the Constitution. Thus, if the Fourteenth Amendment calls for anything, it calls for reversal of Roe v. Wade. In the meantime, the authority and reach of the Supreme Court’s Roe v. Wade decision of 1973 can, as Lincoln said of Dred Scott in 1858, be strictly limited to the Roe case itself. Furthermore, this Supreme Court decision can have no binding authority as a permanent rule of law, nor can it be accepted as a general rule of political action.

Roe v. Wade may be considered a legal ruling of the Supreme Court in a particular case, but it is unlawful in the full sense of the word —unlawful by the customary construction of the plain meaning of the words and principles of the Constitution. Above all, it is a manifest violation of organic American law and of the natural law from which it stems.

In the full light of logic, the moral law, and American history, Roe v. Wade is absurd; it comes to nothing but “raw judicial power”—as sitting Supreme Court Justice Byron White declared in his dissent.

Believing these things to be true, as we do, there is no alternative but to go for complete reversal of this decision by the Supreme Court, or reversal by congressional statute. This we shall do in good conscience, and in good time, because we know we can do so from the original manual for interpreting the American Constitution, the Federalist Papers. In Federalist 81, we are told by the Fathers of the Constitution 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.”

Congress should now be guided by the historical precedent of the anti-slavery statute of 1862 and make good on its coordinate power of constitutional review to overrule the Court in Roe v. Wade. It will again be objected that Congress may have the power but today it has not the will. What then? Shall the child-in-the¬womb go unprotected and the inalienable right to life set forth in the Constitution go unenforced, merely because 535 politicians and nine members of the Court avoid their duty —out of sincere disagreement, ignorance, or bad will? Surely, in addition to abortuary sit-ins, there must be additional lawful action, even if a constitutional amendment cannot now be passed.

The President’s Pledge

Step by step, we are led to consider the third of the co-equal but separate constitutional branches, the Executive, the Presidency of the United States —the incumbent of which swears an irrevocable oath to “preserve, protect, and defend the Constitution.” He alone it is who takes this precise oath; he, alone, who can properly interpret his duty to enforce the Constitution as he is given to see it.

The president might see clearly that he could encourage state legislatures to prohibit abortion, just as he might use his moral leadership to insist that Congress do the same. When the legislatures act to do so, the president could, in the case of a Congressional statute, sign it into law and, in the case of state legislatures, publicly endorse their acts. If the Supreme Court were to attempt to invalidate laws prohibiting abortion, the president could ignore the Court’s unconstitutional writs. If the Court attempted to stop prosecutions under state laws restricting abortion, the president could, citing Presidents Jefferson, Jackson, and Lincoln, stay the reach of the Court’s decision; in-deed he could nullify it by executive power in order to secure the inalienable right to life of every person — which, in virtue of the Constitution, he is sworn to do.

But if the president did act on his constitutional authority, co-equal to that of the Court and Congress, citing his sworn oath to “preserve, protect and defend the Constitution of the United States,” especially in those grave matters of life and death when it may be necessary to oppose a spurious opinion of the Supreme Court, it may be objected that there is no precedent for such an extraordinary executive decision. First, the present slaughter of the innocents is an ultimate and extraordinary threat of destruction to innocent human life and thus to the Constitution of the United States.

Furthermore, there is a precedent. During an equally grave national crisis of life and death in 1861, President Lincoln suspended habeas corpus, one of the most fundamental rights of Anglo-Saxon law. Immediately the Supreme Court acted to constrain the president. Confronted as he was with a writ, issued against him by the Chief Justice of the United States, Roger B. Taney, the President refused to acknowledge it. The writ was without effect and the suspension of habeas corpus continued. Lincoln ignored the writ of the Supreme Court on the constitutional ground that the President of the United States, given an ultimate threat, must interpret his constitutional duty as he, the chief executive is given to understand it —not as the Supreme Court or its chief justice understands it.

Indeed, President Lincoln insisted he violated no law in suspending habeas corpus and of course he did not; for the Constitution does provide for suspension of habeas corpus under conditions of insurrection and nowhere does it explicitly give that power to Congress alone. But to those who argued that he “might” have violated the Constitution, he replied that his first sworn obligation as President was to preserve the Union, without which there would be no Constitution, no laws to uphold, no further means to establish justice. “Are all the laws but one to go unexecuted,” he queried, “and the government itself go to pieces, lest that one be violated?”

Now it is 1989, 16 years after Roe v. Wade and 20 million abortions later. With the echo of Mr. Lincoln’s words ringing in our ears, we must ask: Is it to be supposed that all the laws of the nation are to be executed except one, the inalienable right to life, our paramount birthright —the authority, security, and execution of which is the very basis of the American Republic? Is it truly to be supposed that the annihilation of the child-in-the-womb is to go on and on and no constitutional power on earth, neither Court, nor Congress, nor president, nor even the people of the United States shall arise to stop the holocaust?

Surely no person upholding the Declaration of Independence could sustain such a proposition.

By

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

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