There was a time, 150 years ago, when American law held that all human beings were created equal — except for black human beings. American law currently holds that all human beings are equal — except for the unborn child. The Supreme Court of the United States did legalize de facto abortion on demand in 1973. But now the unrelenting revolt against Roe v. Wade has transformed the judicial issue into a political struggle over the fundamental principles of the American regime.
The Declaration as Law
Americans must ultimately resolve several crucial issues of organic law: Are the liberals right when they declare the American Constitution to be merely what Supreme Court justices say it to be? Or, is it true that all American citizens are, instead, bound to the original interpretations of our fundamental law, authored by the founders of our country?
We remember that the founders, in the Declaration of Independence, appealed to “the laws of nature and of nature’s God.” They knew that only inalienable rights could secure an ancestral patrimony of equality before the law to all Americans. As a people, Americans never were bound together by race. Instead, our sole common birthright originated in the doctrine of God-given inalienable rights that animate the spirit of our laws, our national character, our constitution as a people. To abandon this birthright is, in fact, to abandon the authentic American republic itself.
By invoking the binding laws of nature and of nature’s God, the founders of our country implied that any law, any judicial ruling that violates inalienable human rights is, by its nature, unacceptable; indeed, unconstitutional. And moreover, “that whenever any form of government becomes destructive of these ends [namely, the inalienable rights to life and to liberty], it is the right of the people to alter or abolish [that government], and to institute new government.” For the founders, an unjust law was no law at all.
Thus, it is fitting to ask a simple question: Are not all Americans and their government — past, present, and future — required by fundamental law to uphold the American doctrine of the inalienable right to life, promulgated in the Declaration of Independence? Do these words still have the force of law? Or, is the inalienable right to life and to liberty, in the words of slavery’s great apologist, Senator John C. Calhoun, merely a “glittering generality”?
Legal positivists ignore the fact that the Declaration of Independence is placed first in The United States Code of Laws — even ahead of the Constitution. The great moral issue in America has always been the struggle to uphold the Declaration of Independence — and in our time, therefore, to restore the primacy of the inalienable right to life of the child in the womb. Of this continuing constitutional struggle, we should never doubt the outcome.
Once before — in 1865 — Americans did choose between the positive right to hold property in a black slave and the inalienable right to liberty of that same black slave. Lincoln insisted the black slave was not chattel, but a person, whose inalienable right to liberty was protected by the Declaration of Independence.
Slavery, Abortion, and the Court
It is true that some Supreme Court justices, basing their opinion on the Cooper v. Aaron decision of 1958, maintain that the law is what the Supreme Court says it is. Others, in the “legal realism” tradition of Justice Oliver Wendell Holmes, argue that law is what the sovereign people vote it to be. But, if historically understandable and even legal in some technical sense, was it ever legitimate for Supreme Court justices, or even the sovereign people — given our national origin in the inalienable right to life and to liberty — to decide and vote for the permanent chattel right to hold a black person as property?
Similarly, can it truly be legitimate to uphold a chattel right of privacy to dispose of property in the unborn child? If popular sovereignty or pro-choice doctrines lead to extraconstitutional court decisions that violate the inalienable human rights of the Declaration and the Constitution, are we to suppose there can be no further appeal? To this question Lincoln gave an unflinching answer. And, through a great trial of arms, ending in 1865 with the Thirteenth Amendment abolishing slavery, the American people settled the matter forever.
Now we must ask: Does one really suppose that the right to life, an inalienable right secured by the Declaration, may be eviscerated by an extraconstitutional coup of the Supreme Court, acting alone, without direct warrant from the American people who ordained the Constitution and who alone are authorized to amend it? Do the justices not recall that our forefathers wrote into the primordial law of the Republic that only “We the people of the United States, in order to form a more perfect Union . . . do ordain this Constitution for the United States of America”?
Many still argue that, since the Casey decision, the Supreme Court finally has settled the matter — with few restraints — in favor of abortion on demand. The conventional elites and some Supreme Court justices, echoing the proslavery Dred Scott opinion of Chief Justice Roger B. Taney, argue that two decades of pro-abortion Supreme Court rulings are themselves the supreme laws of the land.
Americans have always responded with respect for Supreme Court holdings in particular cases. But to ask the American people, the sovereign authority, to be quiet about first principles of the Constitution is unacceptable.
Justices Taney and Blackmun
And now let us consider Abraham Lincoln, who never deferred to the principle of the Supreme Court’s decision in the incendiary Dred Scott case, an infamous opinion Lincoln refused to accept as a permanent rule of political action. Rendered for the Supreme Court by Chief Justice Roger B. Taney, Dred Scott declared, against all congressional precedent, that slavery could not be prohibited by Congress in any territory of the U.S.; that the black man could, under the Constitution, never be an American citizen. In the words of the 1857 Supreme Court majority, the black, like the unborn child of the 1973 Supreme Court, was not a person.
Today, much of the liberal intelligentsia argues, in support of Justice Blackmun in Roe v. Wade — just as Taney did of blacks in Dred Scott — that a child in the womb is not a person and thus not protected under the Fifth and Fourteenth Amendments. Justice Blackmun, in his notorious opinion on behalf of the abortion power, might just as well have said, paraphrasing the Supreme Court opinion of 1857 on behalf of the slave power, that the unborn child is also a “mere article of merchandise” and has no rights that Americans are bound to respect. Like Chief Justice Taney’s black man, the unborn child has been abandoned by the Supreme Court.
That both Chief Justice Taney and Justice Blackmun relied on false American history in rendering their opinions should never be forgotten. Contrary to Taney’s recitation of American history, blacks were truly citizens at the birth of the Republic in 1789, voting in at least five states, including the slave state of North Carolina, for and against ratification of the Constitution. And in 1857, blacks were still recognized as lawful citizens in several states, despite Taney’s ruling in Dred Scott that they were not and could not be American citizens.
Similarly, the unborn child was treated as a person in state law and in federal law at the very moment of the ratification of the Fourteenth Amendment in 1868, the constitutional amendment that secured legal personhood for black Americans. Thus, by their actions, and, I believe, by their intent, the congressional lawmakers who framed the Fourteenth Amendment implicitly included the unborn child in the due process and equal protection clauses of the Fourteenth Amendment. Indeed, before Roe v. Wade (and since), the unborn child was and is treated in certain tort and negligence law explicitly as a person — all this, under the same Constitution which Justice Blackmun announced in 1973 did not recognize the personhood of the unborn child.
The Historical Link Between Abortion and Slavery
Americans have now arrived at the moment, just as Lincoln did after Dred Scott, when they must look into the history of the fundamental law for an answer to the following question: How is it that in 1973 the Supreme Court of the United States conjured out of the Fourteenth Amendment a judge-made right to privacy, one that could lawfully sanction the right to abortion on demand, in violation of the existing laws in most of the fifty states? How could it be that the Fourteenth Amendment, which expressly confirmed that the former black slave is a human person, could be construed in 1973 by the Supreme Court to make a nonperson out of yet another human being, the unborn child?
There is no adequate answer to this question, for in fact there is little authenticity in the historical account of abortion contained in the Supreme Court’s Roe v. Wade decision.
In 1973, the Supreme Court ignored the fact that when the Fourteenth Amendment of 1868 was passed, twenty-eight of thirty-seven states held abortion to be a criminal act prior to “quickening,” two by common law, the remainder by statute. Over the next fifteen years, seven more states made abortion a criminal act. By 1973, when the U.S. Supreme Court authored the spurious right to abortion, most states had for generations restricted abortion. For all those who have eyes to see and ears to hear, there was only one historical truth in 1868, at the time of the drafting of the Fourteenth Amendment. And it was this: Consensus in law of the American people did exist — namely, to restrict abortion. And those politicians who today plead for no action because they say there is no consensus cannot deny the undeniable consensus in law that did exist in 1868 and in 1973.
This historical consensus to restrict abortion, I believe, can still be mobilized today. To falsify the Supreme Court opinion in Roe v. Wade, it must be explained to the American people that the same congresses, that prohibited slavery in the Fourteenth Amendment explicitly incorporated into federal law, at about the same time, criminal codes restricting abortion. For example, Congress restricted abortion on all federally administered properties located within the states and the territories. Congress did this by incorporating very restrictive state anti-abortion laws directly into the federal criminal codes of 1859 and 1874, a fact that shows that when Congress resolved the issue of slavery in the Thirteenth, Fourteenth, and Fifteenth amendments, it was at the very same time restricting abortion by federal law.
This unexamined but inescapable historical link between the abolition of slavery and the restriction of abortion by Congress during the mid-nineteenth century cannot be overemphasized: It was no mere coincidence that the two occurred together. It is worth recalling that the final slavery crisis occurred during the 1850s, just as the American Medical Association had successfully carried out a campaign to restrict abortion in the states and the territories — restrictions that went beyond the common law constraint on abortion after quickening. The AMA did this because new medical research, the science of embryology, in the 1820s and 1830s had demonstrated that the life of the child in the womb began not at quickening, but from the first moment of conception. (Indeed, this was the scientific position the AMA upheld through the 1960s and thus was written into most medical textbooks.)
To explain to the American people the history of the parallel antislavery and anti-abortion movements should be sufficient to wreck the remaining rotting timbers holding up the Supreme Court’s rickety framework fabricated in Roe v. Wade and remedy the false story recited by Justice Blackmun in his scandalous 1973 opinion.
It would appear that some in the anti-abortion movement are still perplexed that the right to abortion on demand has enveloped the entire nation. To them, how can it ever be right to do wrong? And if abortion is not wrong, nothing is wrong. But let us recall that in the 1850s, the antislavery movement was perplexed that the right to slavery, despite the inalienable right to liberty guaranteed in the Declaration, was advancing with the same inexorable drive throughout the vast new territories of the United States. That slavery spread rapidly with the doctrine of Manifest Destiny and the cotton gin into the trans-Mississippi South and West before the Civil War is an indisputable fact of history. Historical research into the economics of slavery has confirmed Lincoln’s controversial view in 1858 that slavery was not a dying but rather a growing and profitable institution.
Despite the fact that the Constitution had expressly conferred upon Congress the power in Article IV, section 3, to make all the territories free, Taney’s Dred Scott opinion of 1857 had set aside this lawful power. Indeed, he tried to nullify the power of Congress, making the spread of slavery potentially ubiquitous throughout the United States.
On all fronts slavery advanced, stronger in 1858 — the year before the African slave trade was legally abolished — than it had in 1807. Can there be any more obvious analogy to the spread of the plague of abortion across the face of our nation after 1973?
In 1860 the American people elected a new president at the head of a new party, opposed in principle to slavery. How did Lincoln and his new Republican Party contend with the Supreme Court’s sponsorship of slavery? Invoking the precedents of Jefferson and Jackson, President Lincoln argued in his first inaugural speech of 1861, “if the policy of the [Federal] government . . . is to be irrevocably fixed by decisions of the Supreme Court — the people will have ceased to be their own rulers.”
Following President Lincoln’s lead, the Republican Congress, only a year later, moved against the Court and passed the congressional statute of 1862 that reversed the Dred Scott decision, overruled the Court, and prohibited the extension of slavery to all American territories. In 1863 came the Emancipation Proclamation, then in 1865 and 1868 the Thirteenth and Fourteenth amendments, all of which overthrew slavery and the Dred Scott Supreme Court decision forever.
As one reflects on our first Republican president and his conflict with the Supreme Court, one is moved to ask, who now laments the reversal of the Supreme Court’s infamous Dred Scott decision? Moved by the spirit of the founders of our country, unequivocally enshrined in the Declaration of Independence, we call, using Lincoln’s own words, for the reversal of Roe v. Wade in order to uphold the organic law of the founding, the very basis, of the American Republic itself.
The supervening injustice of Roe v. Wade and the recent Casey decision, both upholding abortion on demand with but empty restrictions, should cause all Americans, invoking our ancient prerogative, to inquire once again into the “just powers” of government. As we examine the case of abortion we shall find, as Mr. Lincoln did before us, that President Andrew Jackson was, in fact, 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 Congress.
In Article III, Section 2, Congress is given explicit constitutional power to remove Supreme Court jurisdiction of all abortion cases. But nowhere in the four corners of the Constitution can anyone discover any explicit power of judicial review, now exercised by the courts over Congress. Thus, to invoke judicial review against the power of Congress to make exceptions to the Court’s appellate jurisdiction is to repudiate an explicit constitutional power of Congress in order to insulate the Court’s implicit power of judicial review. This represents both a curious reversal and an incomprehensible perversion of the Constitution.
Any thorough debate over Article III, Section 2 will yield the unavoidable conclusion, fairly drawn from the Constitution, that if Congress wishes to eliminate lower federal court jurisdiction in abortion cases, it can certainly do so without raising questions of due process, provided that it authorize state courts to review those same cases. For bold legislators who would reform the deep flaws in current Court practice, the lesson is that a renegade Supreme Court can be curbed constitutionally by Congress. Congress need only truly desire to do so. The Congress of 1862 did and overruled the Supreme Court’s Dred Scott decision, and, by statute, prohibited slavery in the territories.
It is clear, for example, that Congress could today, empowered by Article III, Section 2, remove Supreme Court appellate jurisdiction (indeed, remove federal court jurisdiction) of 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 of Independence and in the Fifth and Fourteenth amendments of the Constitution; moreover, that abortion should, to protect mother and child, be rigorously restricted in the United States of America.
Finally, Congress could require that all states pass legislation to carry out the laws of Congress restricting public and private parties equally with respect to abortion. It would follow, all preceding court rulings like Roe v. Wade notwithstanding, that a congressional statute would necessarily become, according to the Constitution, the supreme law of the land. Like the crucial precedent of the congressional statute of 1862 — in which Congress overthrew the Dred Scott Supreme Court decision — a penultimate act of Congress restricting abortion could lead ultimately to a constitutional amendment.
Until then, perhaps Roe v. Wade and Casey may still, in some sense, be considered legal in these particular cases; but these decisions are, in the full sense of the word, illegitimate. In the light of logic, of the moral law, and of American history, Roe v. Wade and its illegitimate progeny are absurd; they come to nothing but “raw judicial power” — as sitting Supreme Court Justice Byron White declared in his lonely dissent of 1973.
Will Congress ever be guided by the historical precedent of the antislavery statute of the Republican congress of 1862? Will Congress ever make good on its coordinate power of constitutional review to overrule the court in Roe v. Wade? Today, it is correctly argued that Congress may have the power, but has not the will.
Step by step, we are led to consider the third of the co-equal, but separate, constitutional branches of government — the presidency of the United States — the incumbent of which swears an irrevocable oath to “preserve, protect, and defend the Constitution of the United States of America.” He alone takes this precise constitutional oath, “registered in heaven,” as Lincoln remarked — he alone must interpret his duty to enforce the Constitution as he, sworn by a unique oath, is given to see it.
The president might see clearly that he could encourage state legislatures to restrict abortion, just as he might use his moral leadership to insist that Congress do the same. When a legislature acted to do so, the president would, in the case of a statute of Congress, sign it into law and, in the case of state legislatures, publicly endorse their acts. Indeed, it is a constitutional truth that, under certain circumstances, the president has the full power to nullify directly the Court’s action by constitutional executive authority — which, in virtue of his constitutional duty, the president might be pledged to do. If the president so acted, citing his sworn oath to “preserve, protect and defend the Constitution of the United States of America,” it may still be objected that there is no precedent for such extraordinary presidential action.
First, let it be said that the present slaughter of the innocents is an ultimate, extraordinary, and unprecedented threat of destruction to innocent human life in America, and thus to the very foundation of the Constitution itself. Should all the fundamental laws but one be executed, even though that one, the inalienable right to life, be the ground of all the others?
Furthermore, there is, in fact, a clear and compelling precedent. During an equally grave national crisis of life and death in 1861, President Lincoln, acting alone, suspended “the privilege of the writ of habeas corpus,” one of the most fundamental rights of Anglo-Saxon and American constitutional law. Immediately, the Supreme Court acted to constrain the president. Confronted with a writ of habeas corpus, issued against him in the Merryman case by the chief justice of the Supreme Court of the United States, Roger B. Taney, the president did not even acknowledge the writ of the court. In fact, he totally ignored the Court — and its chief justice. The writ thus fell to the ground without force.
The suspension of habeas corpus, authorized by President Lincoln in order to save the Union, continued in effect, in virtue of the full constitutional authority of the chief executive of the United States. President Lincoln had ignored the writ of the Supreme Court, on the necessary and sufficient constitutional ground that the chief executive of the United States, given an ultimate threat to the life of the Union, must interpret his constitutional duty as he, the president, is given to understand it — not as the chief justice of the Supreme Court understands it.
Moreover, 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 or invasion and nowhere does it explicitly give that power to congress alone. But to those who argued that he might have violated the Constitution, he did reply that his first obligation as president was to uphold his sworn oath 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?”
With the echo of Lincoln’s words ringing in our ears, we ask again: Is it truly to be supposed that all the fundamental laws of the nation are to be executed except that one, the inalienable right to life, our birthright — the authority and security of which is the very basis of the American republic? Is it truly to be supposed that the annihilation of the unborn child is to go on and on and on, and that no constitutional power on earth, neither Court, nor Congress, nor president, nor even the people of the United States shall empower themselves to stop this holocaust?
Surely no person, especially no people upholding the Declaration of Independence, could, against all history and justice, sustain such a proposition.
This article originally appeared in the September 1996 issue of Crisis Magazine.