An Open Letter to Rob Schenck

Rob,

I had thought a point by point examination of your editorial would be the approach to take in answering your justification of the continued vitality of Roe v. Wade. Indeed, I have spent days pouring over your editorial piece to that end. There are so many manifestly wrong assertions – of the law of love, of reason, of judgment – that a full answer becomes, was it not on a matter so manifestly at the heart of God, nearly picayune.

Tell me I am wrong if I have misinterpreted your editorial. This is its sum and substance:

It is wrong to overrule Roe vs. Wade because there is an insufficient social safety net to support women whose impoverished existence prevents them from being the kinds of mothers that can give to their children the love, care, and sustenance necessary to their formation.

Thus, you will hoist children on petards you charge the church and the larger society either (a) with having created, or (b) with having at least maintained, or (c) at a very minimum, with having failed to deconstruct. In essence, you make the church and the larger society bearers of the bloodguilt of children killed by abortion because, as you seem now to see matters, a child’s mother cannot be directed by law to reject the death of another as an answer to fear or difficulty.

You don’t seem to be able to bring yourself to the stage where you propagate your newfound support for Roe by circulating photos of yourself licking a cake festooned with the message, “Abortion is Healthcare” as did Miley Cyrus recently. Indeed, you claim that every abortion is “a tragedy,” and every live birth is “ideal.” But you do not explain why these assertions are so. And you certainly do not explain why, if the reasons that these assertions are so are, as I suspect they are, why you would oppose restoring the once clear standard of legal protection for uterine children.

I think this is what you are not saying aloud but must be thinking:

Every abortion is a tragedy because it ends the life of a child in being. Every live birth of a child is ideal because such births continue in each being a life cycle of hope and the promise of entry into a life-giving relationship with the Creator God.

Is this why every abortion is a tragedy? Is this why every birth is ideal?

There are, of course, many ways to come to the question of whether an action should or should not be the subject of a positive prohibition in law.

The Reverend Dr. Martin Luther King experienced frustration in confronting a society of self-styled Christians that exhibited the most ungodly despite and abuse of their fellows based simply on the color of their skin. He yearned for all men to be judged by the content of their character, not the color of their skin. And many folks of fairer skin joined him in that yearning. But he wanted more than that. 

He wanted changes in the law that would afford equal status under law to colored people, so that they could enjoy, with the white man, the accommodations, businesses, and affairs of civil society unburdened by rank prejudice.

To that yearning, however, many fairer skinned folk balked. It asked, they argued, too much to enact positive prohibitions into federal law before hearts and minds were converted by the law of love. Let hearts and minds be won, then let laws be changed.

For this, though, Dr. King would not wait. He argued, as one might on a mound of God’s Word, that the civil rights laws should be enacted with dispatch, and not after hearts and minds were trained. Rather, as Paul to the Romans, Dr. King to his Christian interlocutors posed that it was right that the law should be changed so that it could teach the hearts and so that it could ameliorate the wrongs.

Dr. King explained:

“It may be true that you can’t legislate integration, but you can legislate desegregation. It may be true that morality cannot be legislated, but behavior can be regulated. It may be true that the law cannot change the heart, but it can restrain the heartless. It may be true that the law can’t make a man love me, but it can restrain him from lynching me, and I think that’s pretty important also. So while the law may not change the hearts of men, it does change the habits of men. And when you change the habits of men, pretty soon the attitudes and the hearts will be changed. And so there is a need for strong legislation constantly to grapple with the problems we face.”

You know that when the Apostles forbade abortion as a moral act, in the Didache, it was simply a restatement of the law of love, that we should not do to another, the nascent child, what we would not have done to ourselves.

And when the English common law, at least as long ago as the 13th Century, as confirmed by Henry de Bracton’s On the Laws and Customs of England, had concluded that abortion is a homicide of a living human, it did so for precisely the same reason. De Bracton wrote, "If there is anyone who strikes a pregnant woman or gives her a poison which produces an abortion, if the foetus be already formed or animated, and especially if it be animated, he commits homicide." 

William Blackstone explained the basis for the law this way: “Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb.”

Dr. King knew that the law should teach rightly, and thus should make a positive legal wrong of the morally wrong act of race hatred. 

So too the Apostles, the common law, and the positive statute laws of this Nation prior to Roe vs. Wade taught rightly that the human child in the uterus was a living being, a human one, and fully possessed of the natural rights endowed on each of us, at the moment we came into being, at conception, and not by passage through the magical gateway of the cervix.

You are at a crossroads, Rob. 

You must choose. It will be insufficient for those who have welcomed your editorial for you to merely assert, as you have, that Roe should maintain its legal status while begrudging that every abortion is a tragedy.

Lincoln understood how corrupting of the heart and mind the gospel of death could be. So, in addressing another evil, contumacious of the Imago Dei in every African slave, he put the slavers’ case as the slavers saw things:

“Holding, as they do, that slavery is morally right, and socially elevating, they cannot cease to demand full national recognition of it, as a legal right, and a social blessing.”

And that certainty of moral right in the decision to snuff the life of a child out in the womb is what allows Miley Cyrus to lick the abortion cake, and allows thousands of adoring fans of child murder to applaud her depiction of doing so. But it is not just that she must be allowed to celebrate the moral rightness of abortion while you bemoan – in 90-pound weakling fashion – its tragic proportions. As Lincoln put the case for the slaver, so you must see the case for the abortionistas: full national recognition as a legal right and a social blessing.

Sadly, you are along the path to granting all that they ask because, while you claim to see every abortion as tragic, you reject the gracefully direct and instructive act of restoring the legal status of the uterine child as it was before the aberration of Roe and its progeny.

Indeed, as Lincoln continued regarding slavery, you must decide regarding abortion: 

“Nor can we justifiably withhold this, on any ground save our conviction that slavery is wrong. If slavery is right, all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away. If it is right, we cannot justly object to its nationality - its universality; if it is wrong, they cannot justly insist upon its extension - its enlargement.”

Only fools lay in the center of the road, Rob. 

There is no chance for life there. There is no chance for having God take delight in your soul there. Either choose life or choose death. But put an end to the mincing about the question. 

Frankly acknowledge that the lives of every black baby taken by an abortionist and given by its mother represents a grievous moral wrong that society can only correctly mark as a homicide. Or, celebrate the power of the poor to liberate themselves from the quaint notions of a curious desert religion.

Jim Henderson

A Nation Ruled by Its People? Or By Malcontents with Friends?

“Agreement” suggests several possibilities, including a contract, shared understanding, amity. More is implied than absence of conflict. At least, in terms of contract, an agreement suggests that two minds have met, reached an understanding, and have a planned course of conduct. Volumes of law -- both statutes and judicial decisions -- exist as a testament to the value of agreements and the imperfections inherent in them.

“Constitution,” like “agreement,” suggests several possible meanings, including the makeup of individual organization, and more often, a plan of government for an organization, including private organizations like clubs and associations, and public ones like corporations and governments. Volumes of law, and of history, exist as a testament to the value of constitutions and the imperfections inherent in them.

For two and a quarter centuries, the American people have existed together in a union of states. Throughout that time, every American’s lives under the terms of two constitutions: their own state Constitution and the United States Constitution. During that period, state constitutions have been amended by the will of the people. In addition, the U.S. Constitution has been amended 27 times. Changes addressed a myriad of matters, from voting ages to taxation to presidential succession.

All these amendments, changing this scope and terms of state and federal Constitutions, reflect the exercise of popular sovereignty by electoral majorities. Among the means by which constitutions may be changed, amendment by the exercise of popular will, at least in the view of Abraham Lincoln, was the only approach consonant with a popular republican form of government. In his first inaugural address, Abraham Lincoln responded to the popular fear in southern states and that the ascendancy of Republican president would threaten the desire of the southern states to maintain their institutions, including slavery, against the popular will of the northern states. 

To get to his point, Lincoln had to speak with care about a decision of the Supreme Court, Dred Scott v. Sanford, in which the Supreme Court had held that the Congress acted unconstitutionally when it regulated the institution of slavery in federal territories that had not yet been admitted as states to the union. In Lincoln’s view, the Dred Scott Court had, essentially, usurped the role of the Congress in representing the will of the People:

Is it true, then, that any right plainly written in the Constitution has been denied? I think not. Happily, the human mind is so constituted that no party can reach to the audacity of doing this. Think, if you can, of a single instance in which a plainly written provision of the Constitution has ever been denied. If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one. But such is not our case. All the vital rights of minorities and of individuals are so plainly assured to them by affirmations and negations, guaranties and prohibitions, in the Constitution that controversies never arise concerning them. But no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say.

From questions of this class spring all our constitutional controversies, and we divide upon them into majorities and minorities. If the minority will not acquiesce, the majority must, or the Government must cease. There is no other alternative, for continuing the Government is acquiescence on one side or the other. If a minority in such case will secede rather than acquiesce, they make a precedent which in turn will divide and ruin them, for a minority of their own will secede from them whenever a majority refuses to be controlled by such minority. For instance, why may not any portion of a new confederacy a year or two hence arbitrarily secede again, precisely as portions of the present Union now claim to secede from it? All who cherish disunion sentiments are now being educated to the exact temper of doing this.

Is there such perfect identity of interests among the States to compose a new union as to produce harmony only and prevent renewed secession?

Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

Only a rugged individualist or an oligarch would argue against such republican exercises of electoral will. Nonetheless, such individualists and oligarchs have objected to these constitutions and these amendments. Merely objecting to them would mark them as malcontents but leave our republic intact. Contentment is not, however, a signal feature of a malcontent.

Over the course of our two century experiment in republican democracy, constitutional malcontents have grown to rely more and more on one sure source of recourse: judges. Consider, for example, one such case of an early malcontent.

In the waning days of the administration of Pres. John Adams, William Marbury received an appointment as a justice of the peace in the District of Columbia. As Adams administration ended the commissioning papers for Marbury were prepared, but never delivered. After Thomas Jefferson took office, and James Madison was installed as secretary of state, Marbury sought his commission papers from Madison. Madison refused to deliver the commission papers to Marbury. Without the commissioning papers Marbury did not validly hold his office as justice of the peace.

To put Marbury’s demand to Jefferson in perspective, imagine a circumstance in which, in the waning days of the George W Bush administration, a Jewish judicial nominee was confirmed by the Senate. Further, imagine that a commission embodying Bush’s nomination and the Senate’s consent was prepared. Yet, through oversight or neglect, the commission was never issued to the nominee I know oath of office administered. On inaugural day, picture newly installed Pres. Obama entering the Oval Office for the first time as president of the United States. Take in his pleasant surprise on discovering the as yet unknown transmitted commission sitting on his desk, a Post-it note attached to it stating, “Please transmit to nominee.”

Even were Obama a nice man, a decent sort, it asks too much of him that he installed in office-for life-a judicial officer selected by the previous president. The likelihood that such a nominee would meet the ideological preferences of a president of a different political party is laughably small. So, like Jefferson did, you can easily see that Obama would decline to transmit the judicial commission.

In Marbury’s case, being denied the all-but-transmitted commission proved too much. Marbury acted. He filed suit against James Madison, Thomas Jefferson’s Secretary of State. Marbury demanded that the court issue an order requiring Madison to grant the commission prepared during John Adams administration. Because Congress had authorized such suits to be filed in the Supreme Court, rather than in a Trial Court, Marbury filed suit at the Supreme Court.

The Supreme Court dismissed Marbury suit.

In its view, Congress across the boundary in the Constitution by its enactment of the Judiciary act. Congress enacted the Judiciary Act, exercising an express power set out in the Constitution:  “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” In the case of the Judiciary Act, Congress was in fact establishing and ordaining inferior courts. In addition to establishing lower tribunals, however Congress had also enacted a provision in the law allowing litigants to seek writs of mandamus at the Supreme Court.

Since its decision, Marbury v. Madison has come to stand for another principle. The Supreme Court asserted as part of its discussion in Marbury that it had supremacy over Congress and the president in deciding the meaning of the words of the United States Constitution. Such an assertion should have provoked the other branches to immediate response. The decision in Marbury, however, favored Jefferson’s administration in its treatment of Marbury, so it’s provocative dictum was without present harm. In Congress, the House of Representatives had selected Jefferson for president, so again little motivation existed for an immediate reaction there. Thus, the Supreme Court’s otherwise controversial claim -- that between it and the other branches of the federal government, it was the ultimate arbiter of the meaning of the Constitution -- went unanswered.

Now, not every suit fits the mode of the constitutional malcontent. When Acme Company sues John Doe for payment on services rendered, a court may have to interpret the contract. When a man is prosecuted for crime, the meaning of a criminal statute may have to be construed. These judicial extractions of meaning-- from statutes, from contracts, and from constitutions -- are ordinary in the course of adjudication.

The hallmark of the constitutional malcontent is the search for a new or contradictory meaning of the Constitution via judicial decision-making, rather than via amendment of the Constitution. You know the obvious case: Jane Roe, suing to prevent the State of Texas from enforcing its long-standing statutory ban on abortion, and Mary Doe, suing to prevent the State of Georgia from enforcing its modern-day reformed abortion laws.  No honest broker of American history claims that the United States Constitution literally guarantees the right to have an abortion.  Yet, at the time of Roe v. Wade, there was NO likelihood that an amendment to the US Constitution could be ratified that would legalize abortion broadly as did Harry Blackmun’s hit piece.  So, rather than engage hearts and minds of Americans in a longer term conversation about liberty, equality, women’s health, or related issues, Roe and Doe were made the frontispiece of the pro-abortion lobby’s frontal assault on the Constitution, an assault welcomed by a complicit Supreme Court already long comfortable in its assumed role as final arbiter of the Constitution’s meaning.

Still other cases, ripped from today’s headlines, mark the newest ventures into the field of the amendment-free amendment of the Constitution.  These are the cases seeking a federal constitutional home for a right to overturn State laws defining marriage, even State Constitutions defining marriage.  These most recent cases, now a string of successful appeals to federal judges to re-read the federal Constitution in a way that rejects the long-settled statutory definitions of marriage in virtually every State of the Union.  These litigants are the latest constitutional malcontents.  They cannot converse with the People and persuade hearts and minds.  But they can get themselves to a courthouse and find respite there.

What should worry the malcontent, but which they never seem to grasp, is the danger of the precedent involved in propping up this false judicial oligarchy.  Now we do NOT rule ourselves by common agreement.  We are ruled, and overruled, by the preferences of unelected micro-minorities:  appointees who enjoy lifetime employment, undiminished income, and freedom from the democratic urge to engage.  These judges DICTATE, they do not discuss; they COMMAND, they do not invite. When such a judge should turn on them, how will they save themselves?  By recourse to the People, whose laws they reject, whose judgments regarding social convention they reject?  By recourse to judges, whose autocracy is without pity?

Ultimately, if the Nation is to survive, there has to be AGREEMENT under a CONSTITUTION.  But that agreement cannot bear the weight of a Nation unless it is the voluntary agreement of minds that have shared values and common purposes.  The day when such an outcome is possible seems to be something visible only in the rear view mirror.  Still, inviting the conversation may be the way to discover whether that is so.