America's Favorite Tyrant: Abraham Lincoln

What does tyranny look like?

Here's a letter to General Winfield Scott from Abraham Lincoln:

"To the Commanding General of the Arm of the United States

You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line, which now used between the City of Philadelphia and the City of Washington, via Perryville, Annapolis City, and Annapolis Junction, you find resistance which renders it necessary to suspend the writ of Habeas Corpus for the public safety, you, personally or through the officer in command at the point where the resistance occurs, are authorized to suspend that writ.

April 27, 1861

A. Lincoln"

In case you read that and are waiting for the evidence of tyranny, here is the Constitution on this point:

"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

That provision -- the sole constitutional provision authorizing suspension of habeas corpus -- is a clause of Article I of the Constitution. In Article I, the States created the Congress and endowed it with ALL legislative power of the federal government. The habeas provision, from section 9 of Article I, states the only instances in which suspension may occur, and provides clear limitation on the power to suspend the writ.

From that provision, we know only Congress can suspend the writ of habeas corpus.

Now, some two years after Lincoln began instructing his general officers and their staffs that they were empowered to suspend the Great Writ in particular circumstances described by Lincoln the Congress passed an Act authorizing Lincoln to suspend the Writ. The Habeas Corpus Suspension Act of 1863 also provided immunity to Lincoln and his officers from suits filed by those injured by his previous suspensions of the Writ.

That Congress ultimately authorized the suspension of the Writ in its 1863 Act tells you everything that you need to know to wade through the questions about whether Lincoln's order to General Scott (and his orders to other generals) constituted tyrannical acts.

Lincoln, as President, embodied the Executive Power of the United States. The executive power prosecutes wars authorized by Congress and enforces laws passed by Congress. Had CONGRESS passed legislation suspending the Writ, Lincoln's order would be consistent with the Constitution, and, in that sense, at least, not an anti-constitutional form of tyranny.

But to appreciate the "lots of harm, lots of foul" nature of Lincoln's actions, you have to understand what it is that the Writ of Habeas Corpus does.

While the Constitution deposits all legislative power in the Congress and all executive power in the President, it deposits all judicial power of the United States in the Judiciary, consisting of the Supreme Court and such lower courts as Congress should authorize.

The Writ of Habeas Corpus is, in fact, a court order. "Writ" is just another way of saying "Order." Habeas corpus, literally translated from Latin, means "present the body" or "you have the body." In the technical, legal sense, a Writ of Habeas Corpus is an Order of a Court directing a representative of the executive power of the government to appear in court, along with body (the person) whose rights or liberties are at stake. The Order has the EFFECT of requiring the executive branch of a government to appear before the judicial branch of a government, there to provide justification for detaining the person, or suppressing them in the exercise of their rights.

Suppose that troops under General Scott observed a man counting troop transport cars on the rail line from Philadelphia to Washington.

Or, suppose that they discovered a man conducting measurements suggestive of a plan to attack the line with explosives.

In all reasonable contexts, under our tradition of law, it would be required that the executive branch apply for search and arrest warrants to detain the suspect, and the panoply of constitutional protections for persons accused of crime would thereafter be available to the suspect.

Among the rights are many commonly recognized ones: the right to be free from wrongful arrest, search, and seizure; the right to representation by counsel; the right to trial by jury; and, the right to be free from cruel and unusual punishments.

Outside the context of a suspension of the Writ of Habeas Corpus, if the executive branch searched and seized without warrant, denied legal counsel to the accused, refused trial by jury, or imposed cruel and unusual punishments, a Petition by the injured person would ask the judiciary to issue a Writ of Habeas Corpus.

The Petition for a Writ of Habeas Corpus is the document filed by, or on behalf of, a person wrongfully detained or wrongfully restrained in the exercise of their rights.

Today, shrouded in mystery, most Americans, if they have any notion of Habeas Corpus at all, associate the petition for a writ of habeas corpus as a device used by convicted criminals to complain about their trials, convictions, and punishments after the fact, and typically by filing habeas actions in federal court after being prosecuted and convicted in State Courts. The mistake would be to conclude that the Petition for a Writ of Habeas Corpus and the Writ itself are just the clever tools of those who coddle criminals.

The Petition and the Writ are, first and foremost, the tools of those that love liberty and despise the deposit of too much power in the hands of the executive branch of a government. And, in fact, the Petition isn't just about seeking "post-conviction" relief for "criminals."

In 1992, for the second time in my young legal career, I drafted and filed a Petition for a Writ of Habeas Corpus. The brief version of the story shows the value of the Petition and the Writ.

In the run up to the 1992 Republican Convention in Houston, Texas, pro-life activists leading Operation Rescue organized a series of demonstrations and protests in Houston. The stated purpose of these events was to insure that the Republican Party retained the pro-life plank of its quadrennial presidential platform.

While in Houston, rescuers protested at local abortion businesses, including affiliates of America's abortion superstore, Planned Parenthood. A local judge, whose re-election had been supported financially by the law firm representing the abortion stores, issued an Order that limited the rights to freedom of speech within the vicinity of these abortion stores.

Seven pro-life leaders decided that they would challenge the power of the judge to deny their constitutional rights. They were Keith Tucci, Randall Terry, Patrick Mahoney, Wendy Wright, Flip Benham, Joe Slovenec, and Bob Jewitt. They entered the "forbidden zone" and prayed. By court order, they were arrested and held without bond to answer before the local judge.

Together with my late friend and colleague, Mark Troobnick, I researched and drafted a petition for a writ of habeas corpus. Our petition sought review, first in the Texas Court of Appeals and then in the Texas Supreme Court of the detention of the praying protesters. The Texas Supreme Court granted the writ. Under the Court's order, our protester clients were released pending their consideration of the merits of the arguments Mark and I had prepared that the local judge's order violated the right to freedom of speech.

Ultimately, after full briefing and argument, the Texas Supreme Court affirmed its provisional decision and overturned the speech restrictive injunction issued by the local court.

Now, suppose that Tucci, Terry, Mahoney, Wright, Benham, Slovenec, and Jewitt had organized a similar peaceful demonstration against Lincoln's war, with the purpose and effect of discouraging enlistment in the Union armies.

We know from history that Lincoln and his generals did not brook interference with enlistment or conscription. General Ambrose Burnside ordered the arrest and courts martial of a former Congressman, Clement Vallandigham, because of his public addresses about the War, and the effect of those addresses on military enrollment in Ohio and elsewhere.

In the context of that time, relief for Tucci & Company would be found, if at all, by Writ of Habeas Corpus. But remember, Lincoln had suspended habeas corpus, and did so without congressional approval for two years, and continued to do so with congressional authorization for two years more. So the victory in Texas would have been a doomed failure in the Lincoln's tyrannical Union.

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.”

The War Between the States Isn't Over ... Next, We Face A Monumental Question

 As we move deeper into the battle over the display of Confederate flags, the maintenance of statuary and other memorials honoring Confederate dead, we can pretend that we are entering into uncharted waters, and have no way to plumb the depths of disruption that permitting the battle to proceed will entail.

Or, we can examine the history of thirty years persistent and unending attacks by groups such as the Freedom From Religion Foundation, the American Civil Liberties Union, and, yes, Westboro Baptist Church on public displays of monuments depicting the Ten Commandments. If we choose to study the past, we may not be condemned to relive it through this latest iteration of attacks on our common, and yes, dare I say it, Judeo-Christian heritage.

There has been a Thirty Years War on Ten Commandments displays in public places. The public notoriety of that War arose with the Supreme Court’s decision finding unconstitutional a statute requiring the posting of the Ten Commandments on the walls of every classroom, in every school building, in every school district in the Commonwealth of Kentucky. Then, in Stone v. Graham, a 1980 decision of the Supreme Court, the Court, in an unsigned opinion, concluded that the intended result of the ubiquity of the displays of the Commandments was disconnected from any legitimate pedagogical purpose.

That observation compelled the Court to conclude that the statute violated one of the tests the Court uses to measure whether government actions violate the constitutional prohibition against Establishments of Religion. The Court’s decision did not, however, project an absolute prohibition on all possible public displays of the Ten Commandments. Rather, the Court relied on the absence of a pedagogical purpose in the pervasive display:

This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. [] Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commanadments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.

Subsequently, many cases have been brought in trial courts, and numerous appeals heard by the federal courts of appeal, on issues related to public displays of the Ten Commandments.

At the Supreme Court, however, the issue has only recurred in three additional cases. In one case, McCreary County v. ACLU, the Court concluded that a display of the Ten Commandments as part of an interior display in a public building violated the Establishment Clause. In the other two cases, the Court’s decisions permitted the continuation of the displays. In Van Orden v. Perry, the Ten Commandments were depicted on a public monument on display on the State Capitol grounds in Austin, Texas. In Pleasant Grove City v. Summum, the Ten Commandments were depicted on a monument in a city park.

Pleasant Grove City v. Summum is a case with which I am quite familiar due to my role as co-counsel for the City in their case at the Supreme Court.

During the skirmishes over the public display of monuments containing depictions of the Ten Commandments, I provided research and editing assistance to my learned co-counsel, Walter M. Weber when we were representing Pleasant Grove City, Utah. Back then, Pleasant Grove City, had been ordered by the US Court of Appeals for the Tenth Circuit in Denver, Colorado, to immediately allow a religious organization, Summum, to erect a monument in the City's Pioneer Park. The Tenth Circuit's decision proceeded from its determination that the particular park was a "traditional public forum," and that another monument, depicting the Ten Commandments, was a private monument that the City had allowed to be placed in the park.

I have published a brief guide to the right to free speech in public places elsewhere, and it explains the idea of the public forum in a bit more detail. For present purposes, the appeals court's decision that Pioneer Park was a "traditional public forum" simply meant (a) it was the kind of publicly owned property were we expect and often encounter others engaged in expressive activities and (b) the government's ability to restrict speech in the location is severely limited. The Tenth Circuit ordered our client, Pleasant Grove City, immediately to allow Summum to set up their proposed "Seven Aphorisms" monument. Our task was to obtain two decisions from the US Supreme Court.

First, Pleasant Grove City needed the Supreme Court to agree to consider its request to review the Tenth Circuit decision. To obtain review at the Supreme Court, except in a very small category of matters, a party asks the Court to consider their case. This request is a called a petition for a writ of certiorari. That "writ of certiorari," if the Court agrees to hear the case, is an Order to the court below to send up its record of the case.

Second, Pleasant Grove City needed the Supreme Court to agree with its position that, while Pioneer Park was a traditional public forum, the Ten Commandments monument belonged to the City, and by displaying it there, the City had not created a legal obligation for itself requiring that it put on display any privately owned monuments. To get to this second decision, however, we had first to convince the Court to consider the case.

The Tenth Circuit's decision had the potential to work substantial mischief across the United States. Hundreds of cities, thousands of counties, towns, villages, and hamlets, have public spaces, such as Pleasant Grove City's Pioneer Park. If the Tenth Circuit's legal reasoning was sound, every one of those parks, if they were home to a monument or sculpture that had been donated to the local government and placed on display there, would be opened to the donation of all manner of monuments, sculpture and displays of a permanent nature.

You actually already know just how vast the statuary and monumental holdings of American communities are if you give thought to your own life experience visiting States across the Nation. One of my tasks was to quantify just how extensive the reach of the Tenth Circuit's decision could be. It was while I was assisting Walter in his preparation of the petition for a writ of certiorari that I discovered a fascinating research tool maintained by the Smithsonian Institute. That tool, called SIRIS, allowed interested researchers to scour the Smithsonian's substantial informational database of artwork, statuary, and monuments. The database included more than the Smithsonian's own holdings. It included records of such items identified in one of several different national surveys of such works over many years. Our petition to the Supreme Court contained an Appendix providing the Court with a list of displays of particular relevance to that case.

I haven't used SIRIS since we won Pleasant Grove City v. Summum, Today, however, I used it again. I used the database today to try and plumb the depths of a looming national crisis. The Confederacy crisis, if you will, looms on the national horizon. We are hearing more and more stories about the offensiveness of displays that include the Confederate Battle Flag, or that honor Confederate soldiers. We have seen the removal of the Confederate Battle Flag from the South Carolina State House. We are about to witness the disinterment of the remains of Confederate General, Democrat, and KKK Founder Nathan Bedford Forrest and his wife, from their resting place in a Memphis, Tennessee park.

"The Purge" is just getting started.

Just how deep, just how extensive, the Purge will need to be, I think, can only be answered by asking, just how many signs, symbols, and memorials of the Confederacy are displayed across the United States. And it was that question I pondered when SIRIS came to mind. I located SIRIS on the Smithsonian Institute website.

SIRIS is a powerful tool. It provides results that extend far beyond outdoor statuary. An initial search on the site located well over a thousand items whose title or description included the word "Confederate." Eventually, I honed the search down to one that appears only to identify statuary and monuments of the Confederacy.  Here's the search I used. That search indicates nearly 500 items of statuary, monumental markers, plaques, busts, steles, and the like.

When you enter that search, here is what you'll see:

As the circled information indicates, this search produced nearly 500 results. Each item gets a separate summary report. The summary can be expanded and more detail, including photographs, sometimes obtained.

Here is the expanded view of the record entry for the North Carolina Monument at Gettysburg National Battlefield Park:

The circled button is the feature that allows a reader to expand the summary view to obtain further details on the item. From here, I learned that the sculpture was crafted by Gutzon Borglum. With the information provided, a wealth of additional information becomes available, including this webpage about the artist and the statue, and the following photograph was taken during the dedication of that monument, along with remarks by the US Government official accepting the donation of the monument:

I found the remarks of Major General B.F. Cheatham, reproduced below, of particular note. Gracious in victory and gracious in the passage of time, Cheatham engages in no recriminations against the Confederates of North Carolina. He doesn't spoil the memory of the beloved and lost of North Carolina's men who died at Gettysburg, by dwelling o'er long on the contentious causes of the Civil War.

Rather, Cheatham notes, with respect and honor, how the men of North Carolina served and fell there. His penultimate observation could guide all our considerations of these matters:  

Always opposed by superior numbers and with the advantage of position against them, their courage, discipline and leadership carried them to the very muzzles of the guns, and over by a kindly providence, which has taken away the pain yet permitted to remain every sentiment of pride, honor and intense admiration for the heroic accomplishment of our fathers.

Remember, there are nearly five hundred entries in the SIRIS system. That number likely represents over 400 objects scattered throughout the United States, principally in battlefield locations, and southern cities and towns. Also, remember, there are many, many more statuary or monumental items than those noted in the SIRIS system.

While time continues its inexorable work of removing us from any sense that we ought to have of the sensibility of the descendants of Confederate soldiers, sailors, and citizens, we have words like General Cheatham's rekindling that sensibility. If we actually undertake this maddening enterprise of removing emblems and markers of our history, the reminders of our national bloodletting, monuments to the loved and the lost, we should think carefully and long about the extractions we pursue, because the pain will be more than a root canal and more extended than the war these monuments recall.

"Personhood," That is, Status as a Person in the Sense that "Person" is Used in the Constitution, Should be Resolved by the Constitution

If, at this point, I turn a critical eye to the Pain-Capable Unborn Child Protection Act, if I even suggest that it should not be the basket in which we place any of our eggs, let alone all of them, I do it solely because I find that the Act is a poor substitute for the proper response to the growing body of evidence that fetal children are capable of, and do experience, pain.

As an aside, so that you can measure my bona fides as a voice for life and against abortion, let me tell you about me.

• I first articulated a pro-life opinion in public as a Senior in high school at Lejeune High School, (Class of 1976) in an Advanced Biology class taught by Debra Hansen. The position I held then flowed principally from a moral conclusion regarding the act of abortion. As I moved into my adult years, I read extensively about abortion, its causes, its methods, its impact. My moral judgment became seasoned with other, equally valid, grounds of justification for the conclusion that abortion is always wrong.

• Soon, my opinion on abortion translated into action. I began speaking out against legalized abortion, including picketing and demonstrating at a local abortion facility here in Jacksonville, North Carolina. Eventually, in 1982, the rhetoric I and my brother, David Henderson, employed, resulted in a lawsuit against us for defamation by the owner of the abortion business. We prevailed. The defense of our constitutional rights of freedom of speech was accomplished by the North Carolina ACLU and by a newly founded organization, the Rutherford Institute. 

• After we prevailed, my wife and I relocated to St. Louis University so that I could attend the Law School at St. Louis University. In hindsight, no better training ground exists for a pro-life advocate that offered by an urban Catholic University well down the road in its own process of surrendering its soul in pursuit of economic survival. The law school played welcoming host to a vocal pro-abortion element, embodied by the Women's Law Caucus. How hostile could Catholic law school be to pro-life expression? I once was called to an assistant dean’s office for posting a message on the student bulletin board comparing the Religious Coalition for Abortion Rights to Nazi apologists for the Holocaust. Ass. Dean Smith told me that my posting was "the most unprofessional thing he'd ever seen in the law school." Oddly, that was just days after two of my classmates were caught, in the act of copulation, on a classroom floor, by an adjunct professor arriving to teach an evening class!

• Upon graduation, for the next twenty-five years, I practiced law with nonprofit organizations that regularly and consistently included as a segment of cases a variety of opportunities for me to represent pro-life activists and anti-abortion demonstrators. In the process, I represented:

• teens seeking protection from parents trying to force them to have abortions, 
• protesters threatened with arrest for the messages on their signs, 
• pregnancy resource centers threatened with the imposition of a duty to spread the pro-abortion messages of the government. 

• If you have heard of Operation Rescue, Christian Defense Coalition, Randall Terry, Joseph Foreman, Jayne Bray, Michael Bray, Patrick Mahoney, Keith Tucci, Jeff White, Rob Schenck, Paul Schenck, Jeannie Hill, then you’ve heard of my clients or some of them.

Because the PCUCPA is so unlikely to become law, I feel at liberty to observe that the Act is little more than window dressing on a macabre set piece: the more than two score years of legalized child killing in the United States. In the face of the horror, the grinding inhumanity, of our abortion culture, can it possibly be that the best that the House of Representatives can muster is a bill doomed to die aborning -- much like the offspring of an abortion-bound woman -- before it can ever be born.

As a matter of our national history, the Civil War, a national bloodletting of nearly a half million lost lives and untold lost prosperity, was the method by which the Supreme Court's disregarding of the personhood of Africans was, ultimately, corrected.

The right answer to the ongoing holocaust of legalized abortion in America can be found in the historic response of the Congress, the States and the People to the previous erroneous decision of the Supreme Court in Dred Scott v. Sandford. That historic response consisted of three proposed amendments to the Constitution, which became the Thirteenth, Fourteenth and Fifteenth Amendments to the US Constitution.

In Dred Scott, the Supreme Court held that blacks were not, and could never be, citizens of the United States. For that reason, courts could not entertain lawsuits by blacks seeking a declaration that, due to their sojourn in the Free States, they had acquired status as freedmen and could not, thereafter, again be subject to bondage. Civil war and nearly a half million lost lives later, the Nation repudiated the Supreme Court by ratifying the three amendments, ending slavery, guaranteeing an equal right to vote, and, under the Fourteenth Amendment, granting status as US citizens and State citizens to blacks.

Just over a century later, in Roe v. Wade, the Supreme Court likewise concluded that children before birth were not persons in the constitutional sense. For that reason, their own interest in securing their right to life and liberty, and the interests of the States in securing their rights to life and to liberty were completely discounted by the Supreme Court as against the woman's liberty interest in choosing to have an abortion.

In the intervening period, there have been very few shots fired, but so many more lives taken than were lost in the Civil War. Then, in his second inaugural address, Lincoln suggested that the Civil War was a judgment of God on this Nation, in which "every drop of blood drawn by the lash" would have to be answered by "one drawn by the sword." Ultimately, the Confederacy surrendered to the Union, and the three Civil War Amendments were propounded to the States by Congress and ratified by a sufficient number of States. With those amendments, the Constitution expressly read directly contrary to the view of it previously asserted by the Supreme Court in Dred Scott.

Our history -- regarding the constitutional status of blacks -- suggests that there are two sound answers to the illicit Roe v. Wade decision and its progeny.

One answer could come from the Court. The Supreme Court could revisit and overturn Roe, thereby restoring to the States the power to regulate abortion or to prohibit it entirely. That has not happened, not in the more than forty years since the aberrant Roe decision.

There was a time when I, young and idealistic, thought the possibility of an internal correction by the Court could resolve the wrong of Roe. Nearly three decades have passed since I took up the practice of law in a public interest setting, with the hope that, by doing so, I would help to bring about that internal correction by the Court. In that time, I have made many trips to the Supreme Court. I have served as counsel in hundreds of cases representing those that oppose abortion through peaceful demonstrations. In a handful of instances, I represented younger women seeking protection from abortions being forced on them by parents. I also litigated against State and local criminal laws restricting free speech near abortion facilities, adopted by legislative bodies that treated abortion as though it were a holy sacrament. If the Court ever reverses course in this matter on its own, it will come as a great surprise to this no man who is no longer misguided by dreams.

Or, of course, the other answer could come from Congress, the States and the People. We could amend the Constitution in a manner that effectively overturns Roe. That effect was exactly the one gotten for African slaves by the Fourteenth Amendment: reversal of a holding of the Supreme Court that had installed that Court's wrong-headed interpretation of the language in the Constitution as the language of the Constitution. In Dred Scott, the Supreme Court said, "no," blacks are not citizens, and could never be citizens. A half million lost lives and nearly 80 billion dollars (present day value) of treasure later, the Nation bent the Supreme Court over its collective lap and gave it Fourteen spankings. The lesson lasted about as long as it took for the questions of "separate but equal" accommodations for blacks, WWII internment of Japanese Americans, and abortion to come before the Court.

So the certain way, the sure way, to end legalized abortion would be to amend the Constitution to expressly extend legal personhood status to fetal children. Article V of the Constitution sets out two methods of amending the Constitution. Congress may initiate an amendment and send it to the States for ratification. In the alternative, the States may call on Congress to call a convention for proposing amendments to the Constitution. Congress could propose an amendment to the Constitution in terms of the proposed Act.

Availability of the amendment process has not produced any change in the Constitution, however, since the decision in Roe v. Wade. How many millions more fetal Americans must be sacrificed on the altar of Supreme arrogance and ignorance before the Court's error is repudiated in a constitutional amendment ending the horror of abortion?