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

Betwixt the Mirage and Hades: Does Voting Matter

“What difference, at this point, does it make?”

We will elect a new president, a new Congress, and many state and local government officers in less than 10 months. Having actively participated in the political life of our Nation through voting and advocacy for four decades, I am growing less and less sanguine about the prospect that political participation suffices to accomplish positive change.

Frankly, I am strongly tempted, particularly whenever the Republican Congress recedes from the field of battle with the current president as though it were the ninety pound weakling, rather than the other way around, I have that refrain constantly in my head: “What difference, at this point, does it make?”

Among my anarchist friends, the entire electoral enterprise is an exercise in self-delusion and oppression. It is an exercise in self-delusion, as they see it, because the outcome of the process makes no improvement. Oppression, because, after all, why should the choices of some collective group strip those outside the group of rights and liberties.

That latter point explains the near anarchy of many libertarians. My libertarian friends view the binary nature of American electoral processes as a deceptive construct of left-vs-right, deceptive because it ignores the more substantive binary of individual liberty versus statist authority.

For conscientious individuals, elections certainly force larger questions than whether to vote for the candidate who sweats less on camera or the candidate that doesn’t recall or even know the name of the head of the government of Uzbekistan. I have to continually evaluate what 40 years of civic participation has accomplished. Candidly, I am often tempted to conclude that I have pursued a mirage in the Republican Party.

The idea of supporting Democratic Party candidates is beyond admission: that party’s devotion to the unfettered right to abort children in utero prevents me, in conscience, to consider their candidates. With a few notable examples to the contrary, working to elect Republican candidates as a method of accomplishing substantial change has been a fool’s errand.

There are exceptions.

In 1980, I supported the election of John East as North Carolina’s junior senator. He joined the Senate during a Republican ascendancy there. Ronald Reagan, a Republican, took the White House. The Republican ascendancy resulted from the investment of committed grassroots activists. Folks expressed their deep, passionate concern over legalized abortion and other issues by turning off the TV and doing the hard work of political campaigning.

I know.

I was one of those folks. My mother and I got a copy of the voter rolls for Onslow County, North Carolina. We reviewed the county’s election records, including addresses, telephone numbers, and voting histories. All that effort was preparation for our ground campaign, a telephone campaign here in Onslow County. That campaign was educational and motivational in nature. It was designed to produce a reliably pro-life turnout at the polls. John East’s election was an effect of the serious effort of folks like us.

Supporting John East was no mistake.

True to his word, he took Senate responsibility for a legislative approach to overturning Roe versus Wade. In Roe, the Supreme Court legalized abortion on demand in the United States.  Importantly, the Court asserted that it lacked legal competence to answer the question “when does human life begin?” Presumably, the Court offered that description of the limits of its power as justification for its ultimate conclusion that States had wrongly claimed an interest in the life of an unborn child. After all, if the Court could not determine that a child in the womb – at any early stage of development – was human and alive, it could readily dismiss a State’s interest in protecting such lives by law.

Senator East orchestrated the Senate Judiciary Committee’s consideration of the Human Life Bill, Senate Bill 258. The Human Life Bill grew out of Steven Galebach’s analysis of the Roe Court’s disclaimer of competence to decide such questions. Galebach argued that the key question – whether a human child’s life is at stake in abortion – was capable of being answered.

For Galebach, the refrains from pro-abortion advocates – telling Roe’s opponents that the only resort left to them to overturn Roe was the ponderous and difficult task of amending the Constitution – rang hollow. With the Supreme Court’s declared incompetence to answer the question of when human life begins, Galebach proposed that Congress had the competence to examine the issue, that best scientific evidence and medical evidence proved that a unique human being came into existence, was alive, at conception. From such a conclusion, made by Congress fully within the bounds of its legislative competence, Galebach envisioned that a legal challenge would bring the matter back to the Supreme Court. In such a case, Galebach postulated that the Court would defer to the legislative fact-finding by Congress.

Senator East’s proposal, Senate Bill 258, embodied Galebach’s ideas.

Of course, Senators and Congressmen do not necessarily possess special knowledge or training positioning them to resolve questions addressed by Biology and the medical sciences. So the Senate Judiciary committee, to which Senate Bill 258 was assigned, scheduled legislative hearings to assemble and assess the science on these questions.

If you did not live through the time, the high drama, political hijinks, and general shenanigans have been lost to you until now.

As to the biological and medical sciences a long a growing body of evidence fully supported a factual conclusion that a distinct, living human entity comes into existence at conception. Building a legislative fact-finding record for that conclusion – from the testimony of recognized experts in human genetics, embryology, and fetology – was simplicity itself. Here are some brief excerpts from testimony submitted to the Senate Committee:

“I have learned from my earliest medical education that human life begins at the time of conception…. I submit that human life is present throughout this entire sequence from conception to adulthood and that any interruption at any point throughout this time constitutes a termination of human life…. I am no more prepared to say that these early stages [of development in the womb] represent an incomplete human being than I would be to say that the child prior to the dramatic effects of puberty…is not a human being. This is human life at every stage.”

Dr. Alfred M. Bongioanni, professor of pediatrics and obstetrics at the University of Pennsylvania. 

“[A]fter fertilization has taken place a new human being has come into being. ... [This] is no longer a matter of taste or opinion, ... not a metaphysical contention, it is plain experimental evidence. ... Each individual has a very neat beginning, at conception.” 

Dr. Jerome LeJeune, professor of genetics at the University of Descartes in Paris. 

“By all the criteria of modern molecular biology, life is present from the moment of conception.”

Professor Hymie Gordon, Mayo Clinic. 

“It is incorrect to say that biological data cannot be decisive…. It is scientifically correct to say that an individual human life begins at conception…. Our laws, one function of which is to help preserve the lives of our people, should be based on accurate scientific data.” 

Professor Micheline Matthews-Roth, Harvard University Medical School. 

“The beginning of a single human life is from a biological point of view a simple and straightforward matter—the beginning is conception. This straightforward biological fact should not be distorted to serve sociological, political, or economic goals.” 

Dr. Watson A. Bowes, University of Colorado Medical School.

Frankly, the entire Nation ought to have fallen under a kind of cognitive dissonance that such clear, undisputed science existed proving the vital humanity of the unborn offspring of human beings while, at the same time, the Nation’s highest Court offered its own incompetence to answer the question at the heart of a State’s asserted interest in the life of an unborn child.

Once the Judiciary Committee unveiled its juggernaut of genetic, medical, and scientific testimony and evidence, an outcry arose from elements in the legal and medical academic communities. The effect of that outcry was to push to recast the essential question raised by the Human Life Bill from a fact-based one answerable by science and medicine to a metaphysical, philosophical one. Doing so successfully would have simply positioned a contentious issue with a fairly obvious answer as an intractable one. In turn, that intractability would secure the status quo: legalized abortion on demand.

A hue and cry erupted with the Senate hearings on Senate Bill 258. The record was held open for the addition of opposition statements. An odd juxtaposition became evident.

Pro Roe v. Wade activists, the kind of folks that invented the chant, “keep your rosaries off my ovaries” insisted that opposition to abortion was rooted in religious belief. Rather than frankly acknowledging the uncontradicted science, they focused their rhetoric on the theological and philosophical questions of life. The worst of that approach came from the situational ethics of Peter Singer. (Notoriously, Singer also argued that no child should be conceded to be alive until a sufficient time had passed after birth to allow screening for genetic anomalies and defects.)

On the opposing side, anti-Roe activists, for many of whom an undeniable religious component compelled their conscientious opposition to abortion, focused their rhetoric on the basic facts of science and medicine. For them, for me, opposition to abortion might embody a precept of religious conscience but was warranted entirely on the genetic and scientific fact that, from conception, each life is distinct from its mother, biologically alive, and genetically human.

Howard Baker, Republican Senator from Tennessee, thrust himself into this maelstrom of contention. While the logical, factual, and rhetorical bases for Senate Bill 258 plainly supported the push for action, Baker brought the effort to a dead stop. Rather than chiding the science-contrarians, Baker turned on the social conservatives. Me and millions of others like me. Baker barked that “social issues” had to be set aside. The “important” issues of the economy have to take precedence in the Senate’s business.

A decade later, no substantial action had come from the Senate on the central constitutional questions related to abortion. What we did get was the confirmation of a checkered lot of judges and Supreme Court justices, including Sandra O’Connor, Anthony Kennedy, and David Souter. The O’Connor – Kennedy – Souter triumvirate joined together in a in a notorious tripartite opinion reaffirming the central holding of Roe that the Constitution guarantees, as an aspect of liberty, a woman’s choice to abort a pregnancy.

In an unfortunate irony, that reaffirmation of Roe came at the same moment that another politician rose to the presidency on the mantra, “it’s the economy, stupid.” Bill Clinton’s catchphrase was that Democrat’s indictment of the failure of the Baker doctrine that deferred treatment of social issues until America’s soft economy was reinvigorated.

(Absolute fairness requires that I acknowledge a few legislative initiatives on the subject of abortion. There were two principal ones. First, the Hyde Amendment prevented federal funding of abortions. Second, an amendment to Title X family planning funding required that private family planning providers participating in that funding program sequester federally funded programs for family planning from any program they also conducted that provided referrals for, or provided abortion services.)

Over 35 years have passed since North Carolinians elected John East to the Senate. An entire generation of time has passed. Deferring substantial action on “social issues,” under the Baker diktat, meant that no opportunity for an up–or–down vote had has been had on an amendment to the Constitution overturning the Supreme Court’s extra-constitutional adventurism.

By failing to confront the Court’s overreach, the Congress likely shares responsibility for other brazen excesses by the Court, such as its usurpation of the right of the States to provide a framework for marriage based on traditional heterosexual models. As with Roe, the Obergefell decision does not constitute an earnest search for history or meaning by the justices. As with Roe, it is only the stated preferences of the Court’s majority, gussied up in black robes.

A vigorous Congress, fully occupying its role, could well tame the Supreme Court’s excesses. Examples from history suggest as much. A few here will suffice.

In the Great Depression, Franklin Roosevelt and the Congress attempted to use several public benefit programs to address the impact of the depression on the Nation’s economy. Those programs – embodying Keynesian notions that a recovery could be best fueled by government programs of employment, construction, and the like – were keystones of the recovery programs adopted by the “political” branches of the federal government. In a series of cases, however the Supreme Court struck down eight of the programs, including the National Recovery Act and the Agricultural Adjustment Act.

Roosevelt took the decisions personally.

Rather than considering the possibility court had correctly construed constitutional limits on his power, Franklin went on the attack. He suggested that advanced age of certain justices explain their decisions. As a solution, on February 5, 1937, Roosevelt proposed his “court packing” plan.

Roosevelt’s court packing plan would have increased the number of slots for justices on the Supreme Court. Enlarging the Court would allow Roosevelt and a sympathetic Senate to populate the court with new justices allowing Roosevelt to construct a new court paradigm sympathetic to his programs.

Thomas Jefferson famously complained of the difficulty in making substantial changes where the courts of the nation had been packed with the nominees of the Federalist governments that preceded his in a letter to Judge Spencer Roane, he spoke of the “revolution of 1800” was stymied by judges holding lifetime appointments.

Franklin’s plan set aside any pretense that justices of the Supreme Court were apolitical. That pretense crashed hard on the rocks of his proposal. Everyone knew that Roosevelt’s justice nominees would be screened for their views on the Constitution and on the authority of the political branches to adopt the kinds of economic programs the court had struck down.

Roosevelt’s attack on the Court succeeded. Just two months later, before legislation enlarging the Court could be passed by the Congress, two of the Court’s justices made a startling about face on their constitutional philosophy, and in cases addressing the constitutionality of the Social Security Act and the National Labor Relations Act, a new, narrow majority of the Court upheld the constitutionality of these federal programs. As a result of that concession, the Congress turned away from the court packing plan, the Senate defeating the plan by a nearly 4-1 majority.

Another brief, but obvious, example of Congress -- and the Nation -- upbraiding the Supreme Court is found in the propounding of and ratifying of the Reconstruction Amendments to the Constitution. Prior to the Civil War, the Nation had lived under the uneasy truce called the Missouri compromise for three decades. That legislative agreement had fostered westward expansion, balanced admission of slave and free states, and had pushed the contentious issues of human slavery down the road.

In Dred Scott vs Sanford, the Supreme Court struck down the Missouri compromise. The Court held that Scott, as a black man, was not a person under the Constitution. As a consequence, in the courts view, Scott lacked the capacity to sue or be sued in the courts of the United States. Half-million lives and $80 billion in war costs later, the Nation rejected slavery through the 13^th amendment, granted citizenship status and rights of due process and equal protection to blacks through the 14^th amendment, and extended the elective franchise to them through the 15^th amendment.

Other examples exist, including the impact of the Congressional Watergate investigation on the Nixonian presidency, the impact of the Iran Contra investigation on the second term of Ronald Reagan, and the impact of the Whitewater investigation and impeachment on Bill Clinton’s second term. In each of these cases, Congress rose up in its constitutional role of oversight of the Executive Branch to turn back what it perceived either as possible criminal conduct (Nixon, Clinton) or extra-constitutional adventures.

I’m sure you each have your own thoughts on civic participation at its value in securing or rearranging societal constructs such as marriage and personal rights such as the right to life.

Do not misunderstand me.

I am not abandoning civic dissipation. I merely acknowledge a failure of expectations. Working for, voting for, the election of candidates because of their affiliation with the Republican Party has not induced that radical reconstruction of our society as a constitutional Republic of limited powers as I had hoped. Nor has it reinvigorated the keen devotion to the primacy of liberty that that indomitable commitment that was best expressed by Patrick Henry, “Give me liberty or give me death.”

A Satchel of Embarrassments: Harry Blackmun and Roe v. Wade

Harry Blackmun

Justice Harry Blackmun had, in his service on the Court, a well known (and not necessarily loved) penchant to engage in extended explications of the law, when what he was actually called upon to do was to state the holding of the Court in a case, and provide, cogently, the reasoning therefore. He was, in a word, prolix.

Perhaps it is coincidental, but Blackmun's opinion for the Court in Roe v. Wade opens with language strikingly similar in tone and florid appeal to Kennedy's opening in Obergefell. Blackmun wrote:

"We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion."

There is more to the shamefulness of Blackmun's opinion than the decidedly non-constitutional character of that language.

The Constitution, ratified by the States, provided the framework of our federal system of government. By that, I mean that it established the three branch federal, or general, government, and it confirmed the two-level nature of our Nation, as a collection of fifty sovereign States, each of which ceded small aspects of their independence to the general government. The framework left the question of local regulation of health, safety and welfare to the States. The States retained entirely the power to enact criminal laws and enforce them.

After the Civil War, our Nation added three Reconstruction Amendments to the Constitution. Those Amendments barred slavery, guaranteed an equal right to vote regardless of race, and granted US and State citizenship to former slaves, indeed to all persons born or naturalized in the US. The Fourteenth Amendment also guaranteed to all persons the right to due process and equal treatment. Nothing in the Reconstruction Amendments stripped the States of their power over local regulation of health, safety and welfare, or diminished their power to make and enforce criminal laws.

Beginning in the early part of the 20th Century, however, the Supreme Court began to employ the notion that the "due process" required by the Fourteenth Amendment was an expansive concept. Under that expansive view, while "due process" certainly included the right to appropriate proceedings (indictment, trial, representation by lawyer, jury), the Court began to hold that "due process" afforded a set of particular and fundamental rights not related to process.

The substantive due process doctrine, as it came to be called, tended to form the basis of attacks on the power of States to enact a broad variety of laws. Although he appears below, with his own "head in a bag" entry, Justice Oliver Wendell Holmes, Jr., explained the problem with the idea of substantive due process:

I have ... more than anxiety ... at the ever increasing scope given to the Fourteenth Amendment in cutting down ... constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the ... decisions to which I have referred. [T]he words due process of law ... have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.

Baldwin v. Missouri (dissenting opinion). Putting Holmes plainly, he was alarmed at the rapid expansion of the Supreme Court's power to sit in judgment over the validity of State laws affecting economic and moral questions. In a series of cases employing substantive due process, particularly with reference to economic regulation, the Court had struck down laws:

1. prohibiting foreign corporations from doing business in a state, 
2. limiting weekly working hours, 
3. laws prohibiting railroad companies from demanding that a worker not join a labor union as a condition for employment, 
4. preventing privately owned employment agencies from assessing fees for their services, 
5. restricting child labor, 
6. taxing interstate commerce of employers hiring children, 
7. imposing a minimum wage for women and children in the District of Columbia, 
8. regulating the coal industry

Now, turn to Blackmun's opinion in Roe v. Wade and you see the full flower of Holmes' feared judicial expansionism. By the time Roe is at the Supreme Court, the era of striking down economic regulations under substantive due process had ended. Yet, Blackmun found that in the "penumbra" of fundamental constitutional rights there was an interest in liberty, a right, of women to choose to have an abortion. His doctrinal basis for striking down the abortion laws of nearly every State in the Union was that very same substantive due process, a doctrine repudiated by the Court in application to economic rights, but preserved by Blackmun for the right to abort.

Adding to Blackmun's shame, the opinion in Roe represents an epic failure to correctly account for the history of abortion regulation in American legal history. The essence of his error was to portray existing and previous restrictions solely as imposed for the sake of protecting women's lives and health. His version of history then discounts that the States regulated or restricted abortion for the protection of their separate, legitimate interest in the lives of children prior to birth. A detailed account of his historical errors is available here, here, here, and here.

Blackmun cited to, and relied on, "legal history" presented in an amicus brief and in Jane Roe's brief. That "legal history," derived from two law review articles written by New York University Professor Cyril Means, claimed that at the time that America declared its independence, and at the time of the ratification of the Constitution, women enjoyed a liberty right to abort a pregnancy. When Sarah Weddington argued Roe v. Wade, the legal team on which she served knew that there were problems with the version of history offered by Professor Means. A Yale law student on the team circulated a memo containing the following passage:

Where the important thing to do is to win the case no matter how, however, I suppose I agree with Means’s technique: begin with a scholarly attempt at historical research; if it doesn’t work out, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until the courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals.

"Fudge it as necessary." And fudge it Blackmun did. Perhaps he should have given greater care to the source of his history. Cyril Means was general counsel for an abortion legalization advocacy group, the National Association for the Repeal of Abortion Laws. Hardly a disinterested observed of history, Means manufactured history so that Blackmun could make it.

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.