Read below Dr. Herbert Titus’ essay on the Don’t Ask, Don’t Tell Repeal Act, originally published in the William and Mary Journal of Women and Law, Volume 18, Issue 1.
Let me read the words to you [from the 10th Amendment], “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Now I have talked to many people about the 10th Amendment and most do not ask the next question, What are those powers not delegated to the United States nor prohibited to the states but reserved to the states or to the people?
Now tonight I do not have time to expound on very many of those powers so I am going to speak on one power that has been forgotten in all the literature I have read–the power of interposition. Yet, at the very heart of liberty in America is the exercise of lower civil magistrates to interpose between the people and a tyrannical government. Indeed, if you read the Declaration of Independence it was the lower civil magistrates of the colonial assemblies that risked their lives fortunes and sacred honor to interpose themselves between the people and a tyrannical king and a lawless Parliament. If you look at the last paragraph of the Declaration, the Charter of the United States, you will see that they were the representatives of the United States of America and they declared the independence of the States There was never a time in the history of the colonies that they were one national government. There was no such thing as one nation. It was a nation of free and independent states because it was the officers of the state that interposed between the people and the tyrannical king and the lawless Parliament.
So it is today. The states are established by the United States Constitution to interpose between their people and a tyrannical government that has taken over the nation in Washington, D.C. I want to talk to you tonight about four practical action opportunities for the states of the United States to interpose between the people whose liberties and lawful opportunities are being stolen by a tyrannical government that has taken over in Washington, D.C. We are going to talk about political interposition; second, then legal interposition; and third, economical interposition and lastly, offer some solutions to these issues.
When, you look at how the Constitution was ratified, it would state by state, not to the people as a whole because the people of the United States do not act as a whole they act by state by state. This was to retain the principle that this was a union of free and independent, sovereign states and the officials of each state had a duty to protect the liberties of the people of the states they represented. One way they would protect the liberties of the people was that the proposed Constitution would not become the Constitution of the United States unless it was ratified by at least 9 state conventions composed of representatives elected by the people of those original states. Retaining the power of the states to interpose between the people of the states and this new government should this government not obey the new written constitution.
In presidential elections there is only one authority who determines [how the president is to be elected]. Article 2, Section 1, paragraph 2, states, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress. But no senator or Representative, or Person holding an Office of Trust or profit under the United States shall be appointed an Elector.”
Do you know that the state legislature of New Hampshire could decide that the presidential electors of this state would be appointed by the state legislature? There is nothing in the Constitution that commands that the President be popularly elected! Do you know that the Congress today completely governs the manner by which the President is elected in America through a Federal Election Commission that subsidizes the President with your money. I know that most of you have not checked that box on your tax return form! Do you know that it does not matter? They still take your money! That box is only there to give Congress guidance as to how much of your money will be appropriated to subsidize the presidential elections. Perhaps some of you read just recently in the Wall Street Journal where one of the new members of the Federal Election Commission stated “Did you enjoy the Democratic and Republican National Conventions? You should have! You paid for them!”
Not only that but they give special licensing privileges to some candidates and not to others. What we would see in the October debates is “Tweedle Dee” and “Tweedle Dum” because the FEC is composed of three Democrats and three Republicans. It is deliberately designed that way by Congress to shape the political debate. So it will be either a Democrat or a Republican, and it is getting hard to tell the difference. This is a licensed “duopoly!” Isn’t it interesting that the government is chasing Microsoft when they ought to be chasing the Democratic and Republican Parties that have monopolized the elections.
Yet, Article 2, Section 1 paragraph 2 says that it is the state legislatures that have the authority to determine the manner by which presidents are elected. Congress has no authority to limit campaign contributions to a presidential candidate. Congress has no authority to prohibit soft money, hard money, or stolen money–paper money–They have no authority and it is time for the state legislatures to step in and say, “We will do our constitutional duty. We will determine the manner by which the President is elected according to Article 2, Section 1, paragraph 2!” That, ladies and gentlemen, is political interposition and it is time for the state legislatures to take their constitutional duty seriously and determine the manner in which the president is elected.
Now if you don’t believe this then turn to Article 2, Section 1, paragraph 4 and you will see what Congress’ role is. “The Congress may determine the time of choosing the Electors, and the Day on which they shall give their votes; which day shall be the same throughout the United States.” That is all the Congress has authority to do, to determine the time. The place where the electors meet to elect the President is determined in the 12th Amendment. Contrast that language with Article 1, Section 4 which states, “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by Law make or alter such regulations, except as to the places of choosing Senators.”
Notice that the State legislatures have authority to set the time, places and manner of holding elections for the House and the Senate. But there is an escape clause. The Congress does have authority with regard to the time place and manner with respect to the members of the House and Senate but by the constitutional text itself they only have the authority to determine the day on which the electors and the Electoral College meet.
Now turn back to Article 2, Section 1 and see that not one member of the House and not one member of the Senate can be one of those Electors. They are disqualified. Why? If you read the Federalist Papers you would know that they did not want the President to be dependent upon the Congress. They wanted the President to be responsive to the State Legislatures and the States. It was designed deliberately to enhance the power of the States, vis a vis that the one elected to the highest office the land would not be a tyrant but would be responsive to the interests of the people state by state.
The United States Supreme Court recently struck down the partial birth abortion statute enacted by the Nebraska State Legislature and in the process the other statutes passed over 35 other states. In addition, the Supreme Court also struck down a Texas case that people could no longer pray at a football game. Now those from Texas will know that these are fighting words when you can’t pray at a football game!
If George W. Bush was a Constitutional governor he would have told the Supreme Court, “We will not obey that lawless order!” If the governor of Nebraska was doing his constitutional duty he would have told the Supreme court, “We will enforce the law prohibiting partial birth abortion in this state! I don’t care what the Supreme Court has said!” But neither the governor of Texas nor Nebraska has read Article 6 of the Constitution. See today State officials would have you believe that the only one who has a Constitutional duty is the Court. In fact they believe that the Court is Supreme! Now Article 6 does not say that this Supreme court is the supreme law of the land! To the contrary it says, “This Constitution, and all the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land.” A Court opinion is not the constitution! It is just a Court opinion. Sir William Blackstone put it this way, “Court opinion is evidence of Law. However, today most Court opinions is bad evidence of law because they don’t pay attention to the law! They don’t read the Constitution they just read their own opinion.
Turn to the second paragraph of Article 6. “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by Oath or affirmation, to support this Constitution;” not the opinions of the Supreme Court about what the Constitution means. Every state officer whether they are a governor, state legislator or attorney general, or local prosecutor, or police officer or sheriff is bound by Article 6 to support this Constitution. If the United States Supreme Court renders a decision contrary to the Constitution, what are these officials by their oath of office bound to do? Disobey! Disobey! Guess what that would do? That would require the President to send out the National Guard. Now can you imagine the President sending out the Guard to a Texas football game?
You see the power of the state to interpose on behalf of its people in the name of this Constitution is a power that has been neglected not because it isn’t in the 10th Amendment of the Constitution but because they would rather have you not know that they have that duty. Life is much easier to say “the Supreme Court has spoken. We must obey.”
However, Article 2, Section 3 says that the President “…shall take care that the laws be faithfully executed…” Now if a state governor would refuse to obey a Supreme court opinion, it would require the President to decide what the Law is. He would have to determine whether or not the Supreme Court opinion was lawful. If he sent out the National Guard we would know that it was only by force and not by law what that decree was for. We have not seen a constitutional governor for some time in our nation.
It was too bad that Governor Fob James and the great state of Alabama forgot its history when they didn’t reelect Fob James. Remember what he said that if a federal court tells Judge Roy Moore to take Ten Commandments off the wall of his court room, I’ll be at the door of the Court House. That is the type of governor that this Constitution is speaking of. That is the type of governor we must insist upon. That’s the kind of governor that would interpose and do his constitutional duty on behalf of his state against a tyrannical Supreme Court. After all, one thing about Courts is that they cannot enforce their own opinion. That is why Alexander Hamilton called them the least dangerous branch. The only one who can enforce a court opinion is the one who has executive power. If a governor who has executive power in a state says, “I will not execute that Supreme Court opinion,” then it is going to require the President to send out the troops.
We have heard much talk tonight about the 16th Amendment. There is no question that it has been used to rob the people of what is rightfully theirs. Many times, instead of asking what kind of economic power they have, the State officials hide behind the 16th Amendment and say, “Well, it is because the Federal Government takes all the taxes and sends them to Washington that we just don’t have any power any more because we cannot raise enough money from the people.”
I am working on a case right now by filing an amicus brief challenging the constitutionality of the Clean Air Act on the grounds that it was an unlawful delegation of Congressional power. If you look at the statute to find out what the rules are in regards to clean air, you cannot find them in the statute even though Article 1, Section 1 vests all legislative power in the Congress and the very essence of legislative power is to pass the rules. Instead the EPA passes the rules. But did you know that they don’t enforce them? Did you know that when the EPA passed the rules on ozone and particulate matter in the air that they don’t enforce them? Do you know who does? The states! The states enforce the federal standards for clean air which were not even enacted by Congress.
Now by what constitutional authority does the state enforce federal law? The answer is none, zero! Nada! How do we know that? Because we, unlike most governors, have read Article 2, Section 2. The President “…shall have power, by and with the advice and consent of the Senate, to make treaties, provided that two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law…” Now did the President appoint the Governor of New Hampshire? No! The people of the state of New Hampshire did. So is the Governor of New Hampshire a federal officer? No! Yet, the clean Air Act requires him to enforce the clean air standards passed by the EPA.
Now why would Congress do that? Because it is regulation on the cheap. It is cheaper that way. It is called unfunded mandates. They mandate the state officials to enforce the federal law because they don’t to take the money they have and spend that money to enforce the rules. Do you want to know another reason the Congress does not want to spend the money? Because they do not want to make the hard choices. When the EPA hands down a new rule about ozone or particulate matter, it is up to the Governor to decide which industries have to be shut down. He has to make the tough choices. You know what these governors should do? Make the Federal officers enforce it. Then Congress might say, “If you want your highway funds…” But if 50 governors said we won’t enforce it, then what?
You know the governors meet periodically. Have you ever watched what they talk about? They become a lobbying organization. Like all the rest, they go to Washington to see how much they can get of your money instead of doing their constitutional duty by saying, “Look Article 2, Section 1 of the Constitution of the United States vests all executive power in the President. He has only the authority to appoint other federal officers and that has to be done with and by the advice and consent of the Senate. We are not one of those officers. We cannot enforce this law and we won’t enforce this law.
That is what two sheriffs did when they passed the Brady Bill. The Sheriff in Montana and Arizona did this and were taken to Court and the United States Supreme court agreed with them. But the United States Supreme Court would not have had the opportunity to agree with them if they had acted like all the other sheriffs and never challenged it.
Unless the state officials do their constitutional duty and refuse to lend the economic power that they still have despite the 16th Amendment, [we will not see this changed] because Congress doesn’t want to spend that money. Not to just enforce many environmental laws but also educational laws. We have heard very eloquently tonight that the United States government has no authority over education. What would happen if the school board said, “We will not take your money!” I have read recent studies that educational quality does not turn on how much money they spend. As a matter of fact I have seen that the more money they spend the worse the education they have. We need to get away from this notion that if you spend more money you get more quality. In fact, do you know where all that money goes? It goes to the people who do not teach! Now we have discovered that teachers teach because they cannot do, and administrators don’t teach because they cannot teach!
So Congress has essentially enslaved the states just as much as the Court has usurped state power.
The FCC has hijacked the presidential election process. It is time to not only for political interposition, not only for legal interposition, not only for economic interposition but it is also time for Constitutional interposition.
You know the greatest danger for our liberty is not in Washington D.C. But in New York City. If you have been following the newspapers recently they have just had a conference on Global Government. It was the United Nations. I have a copy of the United Nation’s Charter. I suggest you read it but not before going to bed! We are told that the Charter is a treaty. It is not. It was never designed as a treaty. It was designed as a Constitution for world government from the beginning.
Like the United States Constitution, it has provision whereby it may be amended without it ever being submitted to the United State’s Senate for ratification. It has its own internal amendment process just like the United State’s Constitution may be amended without the unanimous consent of the states, the UN Charter may be amended with the unanimous consent of the member nations. The new members may be added without all the members agreeing. Libya could be added tomorrow.
Some people say, “Yes, but we have veto power in the Security Council.” But veto power is not according to the Constitutional provision in regard to a treaty. If a new member is to be added to the United Nations, it should only be if it is ratified by the Senate, if it was a treaty. But it was never designed to be a treaty! Indeed, all you have to do is read the first words of the Charter, “We the people of the United Nations.” Look at the Preamble to the United States Constitution. What does it say? “We the People of the United States…” If the UN Charter was a treaty it should say, “We the government officials of the various member nations…” They are the ones who have authority to make treaties. Why did they say “We the People of the United Nations”? Simply because they were displacing the Constitution of the United States with a new Constitutional document. But unlike the Constitution of the United States, it has never been submitted to the People of the United States for ratification. It is an illegitimate document and organization and must be resisted!
I read President Clinton’s speech that he gave at this Council on Global Government and he was giving kudos to Kofee Anan, that wonderful United Nations beaurocrat who is the only one who came up through the ranks to become Secretary General. This is what he said, “This man is sent from heaven.” There is only one I know who has been sent from heaven. There is only one who is Prince of Peace. The United Nations would bring peace by outlawing war. They outlaw war by ridding us of our national boundaries. Then everything becomes a police action.
Is that really what they are about? In a human development report 2000 that was issued just about a month and one half ago Kofee Anan said, “The United Nations is composed of member nations but it exists for the benefit of the peoples of the world and no national boundaries will stand in the way of our reaching the peoples of the world!” That’s Koffe Anan. That’s the United nations and the way it is designed.
Some say, “Well, they have not yet taxed us!” Oh yes they have. Article 1, Section 7 of the United States Constitution says, “All bills for raising revenue shall originate in the House of Representatives…” Do you know where the bill originates that raises revenue for the United Nations? In the General Assembly. That’s why they bill us! It would be the same as if the EPA said, “This is the amount of money we need. Now you owe it to us Congress!” You see we are already being taxed without representation. It already violates that principle upon which the Revolution was founded–No taxation without Representation! We must resist the illegitimate and unlawful United Nations that would usurp the power of the people to constitute the government as this nation had been founded.
What shall we do then? May I propose that cities, counties, and states pass laws declaring that they are United Nations free zone? There is a way to combating an illegitimate intrusion upon the national sovereignty of the nation and the sovereignty of the 50 states. It is time that the people rise up and remind our government officials that we constitute the government–THEY DON”T! And we reconstitute the government, they don’t! It is time for action in this arena. Last week we continued to be betrayed by the President of the United States and his minions in the Senate who were afraid to stand on principle.
In the House of Representatives there is a bill numbered 1146. It is sponsored by 17 members of the House. The leading sponsor is Rep. Ron Paul of Texas. Two years ago Ron Paul by amendment to the appropriations bill got 54 votes from members of the House to get the United States out of the United Nations and the United Nations out of the United States. I had the privilege of writing the constitutional analysis, some of which I shared with you this evening, in support of HR 1146. If you want to see that analysis, it is on the Internet at www.libertycommittee.org.
If you are someone who prays, and if you don’t you ought, may I ask you to pray the prayer based upon Proverbs 21:1, “The heart of a king is a channel of water in God’s hands. He moves it whichever way that He wishes.” Indeed, if we are to see action as I have outlined to you tonight in having the state officials interpose and once again bring the presidential elections back home where it belongs, out of the clutches of the FEC; if we are to see state officials exercise the legal authority they have to defend the Constitution against unconstitutional opinions of the Supreme Court of the United States; if we are going to see state officials who are willing to exercise the economic power they have even though they might risk losing some of those federal funds; and if we are to see the People of the United States rise up and say, “We are the ones who constitute our government. We will not be a part of an unconstitutional United Nations,” we need to pray for what I have outlined for you tonight is impossible. But with God all things are possible for He is the One who moves the hearts of kings.
I was once involved with a Christian Law school that had to go before the American Bar Association to be accredited. I can assure you that the American Bar Association was not happy that the Bible has reentered a law school classroom. This law school I was associated with was of all places Oral Roberts University. We got one vote from a committee in June and 22 against us in 1981. We had another opportunity to get a second review and there was 21 against us in June. In August the ABA accredited the Law school. Why? Because God moves the hearts of even an accrediting authority of the ABA. How do I know this? Because we took them to court. Guess what God gave us an activist judge who said to the ABA, “if you do not accredit that Law School I will!”
Now the ABA could have appealed and taken it to a higher court. Instead they folded. The second committee where we only got one voted unanimously. The chairman of that committee spoke on our behalf and voted for us. Two weeks later I got a letter with a newspaper article in which that man who voted and spoke for us said, “the biggest mistake the ABA has ever done is accredit the law school at ORU. “The heart of a king is like a channel of water in His hands, He moves it whichever way He wishes.”
So if we are to see a blueprint of restoration where the states take their constitutional duty and right of interposition, we need to be on our knees praying that even though those state governors who do not want to do it would be moved by God to do what they do not want to do. You see God is not out of the nation building business. He still moves kings and governors and presidents and judges. We just need to take a stand. In order to take this stand, we need to know what the Constitution says.
Jesus Christ, who is my political hero demonstrated that when He encountered the devil in the wilderness. When He was challenged by the devil to turn the stone into bread, and He had the power to do so for He was the Son of God, He showed He did not have the authority to do so for He said this, “Man does not live by bread alone but by every word that proceeds out of the mouth of God.” Satan picked up on that in the next temptation when he said, “Jump off the pinnacle of this Temple.” And then he quoted Scripture, “for the angels will take care of you.” Remember what Jesus said? You live by every word of God. He responded by that word, “You shall not tempt the Lord your God.” Then Satan showed Him all the kingdoms of this world. He said there you are. They are yours for the taking if you will “bow down and worship me.” Jesus said, “Thou shalt worship the Lord your God and Him alone.”
Remember each time that Jesus responded He said “It is written! It is written! It is written!” If we are to serve in this nation, then we not only have to know the written Word of God, we also need to know the written word of this Constitution! If we neglect that written word, then how can we hold our state officials to what is written?
Even Chief Justice Marshall, if you read the case of Marbury v. Madison said that the reason why the Court would strike down a Congressional statute and have the power to do so was because the Constitution is written. It is written for the purpose of establishing the rule of law by which no government official can transcend. Then he said this, “The Constitution is an instrument for the government of the Court as well as an instrument for the government of Congress.” He did not believe that the Court was above the written Constitution because he had read in Article 6 that this Constitution is the Supreme law of the land. Not a court opinion! Not your opinion or my opinion but Constitution as it is written.
I challenge you, I exhort you, I encourage you that as God calls you as citizens of this great land, that you step out in faith trusting that as you stand for the written covenant of this great nation; and as you call upon your local and state officials to interpose and defend the liberties of the people against this tyranny we face in this nation, may you do your part and meet your Maker He will say, “Well done thou good and faithful servant.” God bless and thank you for inviting me.
Dr. Herbert Titus is IAI’s Distinguished Senior Fellow in Constitutional Law, Jurisprudence, and Public Policy.
This speech was originally delivered at New Hampshire Center for Constitutional Studies Conference in September 2000and published by The Christian Committees of Correspondence..
The opinions published here are those of the writer and are not necessarily endorsed by the Institute.
Monday, January 22, 1996, marked the 23rd anniversary of Roe v. Wade. The annual March for Life took place in Washington. Other pro-life demonstrations occurred throughout the country. My wife, Marilyn, and I were in Baton Rouge, Louisiana, the state capital and home of Louisiana State University. On Monday morning a pro-life student group set up a mock “cemetery. . . on the LSU Parade Ground. . . featur[ing] 4,400 crosses. . . and a tiny white casket draped by an American flag with a single red rose on top.” The Advocate B1-B2 (Jan. 23,1996).
At noon a number of pro-choice demonstrators invaded the parade ground and placed coat hangers on the crosses. The hangers, the protesters claimed, symbolized the “crude tools women formerly used to obtain unsafe, illegal abortions.” The crosses, the p ro-lifers maintained, “were memorials to unborn children whose mothers legally aborted their pregnancies.” Id. at B1.
Buried in the local newspaper coverage of this event was a brief account of another event, held later on Monday evening and on the same campus. It was a debate on the question: “Did the U. S. Supreme Court Legalize Abortion in Roe v. Wade?” The reporter informed his reader that there were two sides to this issue. But that did not deter him from stating as fact that “the Supreme Court decision. . . legalized most abortions.” Id. at B2. Nor did the debate topic stop
local television news reports from making similar “factual” statements that the Court make abortion “legal” when it decided Roe v. Wade.
The Baton Rouge media treatment of the Court’s opinion was no different from that of other media throughout the country. In The New York Times, for example, the reporter covering the March in Washington opened his story with reference to Roe v. Wade as “the landmark Supreme Court ruling that legalized abortion. . . .” The New York Times A12 (Jan. 23, 1996).
This opening statement also captioned the picture placed above the story headline. And the reporter found opportunity to repeat it twice in the body of the article, making it unmistakable that the Court’s ruling in Roe v. Wade had made abortion legal. By repeating again and again that abortion is legal, the national media has placed itself squarely on the side of the pro-abortionists. After all, if abortion is now “legal,” then the only question is whether it is immoral. Most pro-life activists and politicians have accepted these terms as the premise of the ongoing debate. While they are quick to assert that the Court was wrong and should be overruled, they accept that Roe v. Wade is, at least for the time being, the ” law of the land.”
Nothing could be further from the truth. Roe v. Wade is not the law of the land because, in the nature of things, a court opinion cannot be law. Second, it is not law because, by definition, a court order cannot be law. Finally, Roe v. Wade is not th e law of the land because it is not the law of the Constitution. For these three reasons, the United States Supreme Court did not – indeed could not – legalize abortion in Roe v. Wade.
Article VI, Section 2 of the United States Constitution lists three things as “the supreme law of the land”: (1) This constitution; (2) The laws of the United States which shall be made in pursuance of it; and (3) All treaties made, or which shall be m a de, under the authority of the United States. Conspicuously absent from this roll is a court decision.
This omission was not an oversight. The Constitution’s framers left court opinions off the list because no one believed that they were law. Instead, they believed, as did their contemporaries, that a court opinion, even if rendered pursuant to the Constitution or to a statute or to a treaty, is only “evidence of law.” See I Blackstone, Commentaries on the Laws of England 69, 71 (1765).
This is true because of the limited nature of judicial authority. Judges, Blackstone wrote in 1765, have no authority to make law. They may only discover it, state it, and apply it. Even the common law, although unwritten, preexisted and stood independent of a court opinion expounding upon it. Id. at 67-69.
Thus, while a court opinion, having been written by experts in the common law, is “most authoritative evidence. . . of the existence of” such law (Id. at 69), Blackstone asserted: The law, and the opinion of the judge, are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law. Id. at 71.
If a judge was mistaken about that law, then, according to Blackstone, his opinion was not “bad law, but that it was not law” at all. Id. at 70. If this is true about judicial authority at common law, where law is determined by unwritten custom, it must be true of judicial authority under a system of positive law, where law is determined by the authority of some body other than the courts. A written constitution is law, Chief Justice John Marshall claimed in the famous case of Marbury’s v. Madison, 5 U. S. (1 Cranch) 137 (1803), not because the judges say so, but because the people have made it so: The people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness. Id. at 176. By definition, judges have absolutely no authority to substitute their principles for those adopted by the people. To ensure that the judges, and other government officials do not overstep their authority, the American people put their principles in writing lest they “be mistaken, or forgotten.” Once put in writing, according to Marshall, that writing “form[s] the fundamental and paramount law of the nation” and any act “repugnant to the constitution, is void.” Id. 176-77.
After determining that the Constitution was law because the people made it so and because it was written, Chief Justice Marshall turned his attention to the authority of the Supreme Court to decide constitutional questions. To answer this question, he stated the common law premise upon which all judicial authority rests:
It is emphatically the province and duty of the judicial department to say what the law is. Id. at 177. By this statement he did not mean that the courts have the authority to make constitutional law. He had already affirmed that only the people had that authority. What he meant is what Blackstone had written just a generation earlier, namely, that the judge was to discover the law and to state it.
Marshall had already done that. He had read a statute enacted by Congress and discovered that it commanded the Court to take jurisdiction of the case before it. He had also read the Constitution and had discovered that it prohibited Congress from conferring such jurisdiction. The “very essence of judicial duty,” Marshall wrote, was to “determine which of these conflicting rules governs the case.” Id. at 178. In deciding that the constitutional prohibition governed, rather than the statute, Marshall did not claim that the Court was making law; rather, he wrote that the Court was merely deciding that the law of the constitution was “superior to any ordinary a c t of legislature.” Id.
In making his decision, Marshall did not pretend that the Court’s ruling was equivalent to the law of the Constitution. To the contrary, Marshall concluded that the Constitution governed the Court, just as it governed the Congress. He supported this conclusion with particular reference to language in the Constitution.
First, he noted that a number of provisions in the Constitution directly limited the power of the courts: From these, and other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of the courts, as well as of the legislature. Id. at 179-80. Second, he observed that judges, like members of Congress, were bound “by oath or affirmation to support this Constitution:” How immoral to impose it on them, if they were to be used as the instruments, and knowing instruments, for violating what they swear to support. . . Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if th a t constitution forms no rule for his government? Id. at 180.
Finally, he turned to Article VI, Section 2 with the comment “that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States, but those only which shall be made in pursuance of the constitution, have that rank.” Id. at 180.
From this clause, and the previous ones mentioned, Marshall concluded that the Constitution as it is written is superior to the courts, as well as to Congress and the President: . . .The particular phraseology of the constitution of the United States confirms and strengthens the principle supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. Id.
For Marshall to have claimed otherwise would have been to elevate the Court above the people, and a court opinion above the constitution. That would have contradicted the very foundation upon which Marshall had concluded that the constitution was law.
Presidents from Thomas Jefferson to Abraham Lincoln understood this point quite well and acted accordingly. For example, Congress enacted the Sedition Act of 1798, making seditious libel a federal crime. Led by Jefferson and James Madison, the Kentucky and Virginia legislatures passed Resolutions charging that the sedition Act was unconstitutional. In the Virginia Resolution, Madison included a provision rejecting the contention “that the judicial authority is to be regarded as the sole expositor of the Constitution, in the resort”: . . .Dangerous powers, not delegated, may not only be usurped and executed by other departments, but. . . the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; . . . consequently, . . .
the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations. . . by the judiciary, as well as by the executive, or the legislative. The Virginia Report. 196 (J. Randolph, ed. 1850).
According to this view, then, the “parties to the constitutional compact, from which the judicial, as well as the other departments hold their delegated trusts” must be the final expositor of the constitution: On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the Constitution which all were instituted to preserve. Id.
Jefferson, Madison, and their fellow Republicans, therefore, rejected any notion that the courts, by upholding the constitutionality of the Sedition Act, had thereby “legalized” federal prosecutions for seditious libel. See Levy, Freedom of the Press from Zenger to Jefferson (1966)
After he became President, Jefferson pardoned everyone convicted under that Act because, in his opinion, the law was unconstitutional. In a letter written to Abigail Adams in 1804, Jefferson explained his action: You seem to think that it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive, any more than for the Executive to decide for them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the Constitution. 8 The Writings of Thomas Jefferson 310 (Ford ed. 1897).
Jefferson was right. Article II, Section 3 states that the President “shall take care that the laws be faithfully executed.” It does not say that he take care that “court orders” be faithfully executed. A court order is not the law of the land; only the Constitution and laws conforming to it are. Nothing that Chief Justice John Marshall wrote in Marbury v. Madison undermines Jefferson’s claim. If a legislative act “repugnant to the constitution, is void,” as Marshall penned in Marbury, then a court order repugnant to that constitution is void.
For, as Marshall stated, “the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Marbury v. Madison, supra, 5 U. S. at 179-80.
In 1832, President Andrew Jackson followed in Jefferson’s footsteps. He vetoed on constitutional grounds an act to recharter the bank of the United States, even though the Court had upheld a previous measure as constitutional. In his veto message, Jackson wrote:
It is maintained by the advocates of the bank that its constitutionality in all its features ought to be settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered well settled. 2 Messages and Papers of the Presidents 576-589 (Richardson ed. 1897).
Later in his message, Jackson put the Court into its proper place in relation to Congress and the President: It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may b e brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their Legislative capacities, but to have only such influence as the force of their reasoning may deserve. Id.
Finally, Abraham Lincoln refused to accept the Supreme Court’s decision in Dred Scott v. Sanford, 60 U. S. (19 How.) 393 (1857) as the law of the land. In the campaign for United States Senate in 1858, Lincoln denounced Dred Scott, suggesting that it w a s part of a conspiracy to nationalize slavery.
Lincoln’s opponent, Stephen Douglas, responded: The right and province of expounding the Constitution, and construing the law, is vested in the judiciary established by the Constitution. — As a lawyer, I feel at liberty to appear before the Court and controvert any principle of law while the question is pending before the tribunal; but when the decision is made, my private opinion, your opinion, all other opinion must yield to the majesty of that authoritative adjudication. Quoted in Brest and Levinson, Processes of Constitutional Decision Making 2 11 (3d Ed. 1992).
A week later, Lincoln refuted Douglas: . . . [I]n respect for judicial authority . . . Judge Douglas . . . would have the citizen conform his vote to that decision; the member of Congress, his; the President, his use of the veto power. He would make it a rule of political action for the people and all departments of government. I would not. Id. at 212. All that Lincoln would concede to Douglas was that Dred Scott was binding on the parties to the case. By limiting the scope of the court’s order to the parties, Lincoln correctly confined the reach of judicial power. Judges, by the nature of the office , have no right to issue rules of general applicability, but only to apply preexisting rules to the facts and parties to the case. Marbury v. Madison, supra, 5 U. S. at 178. Having no authority to promulgate rules, no court opinion or order can possibly be law, because law by definition is a rule binding on people generally, not just upon individuals who happen to be parties to a case. I Blackstone, Commentaries at 38-39, 4 4.
To conclude otherwise would, as Jefferson argued, install unelected federal judges as “despots:” Our judges see as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. . . Their power is the more dangerous as they are in office for life, and not responsible . . . to elective control. The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all departments co-equal and co-sovereign within themselves.
To guard against judicial despotism, the people chose a written Constitution, the text of which is binding on courts as well as on the legislature and the executive. What is striking about the Supreme Court’s opinion in Roe v. Wade is that the Court ma d e no attempt whatsoever to ground its opinion in the constitutional text. Justice Blackman candidly admitted that the “Constitution does not explicitly mention a right to privacy.” Roe v. Wade, 410 U. S. 113, 152 (1973). Notwithstanding the absence of a specific text, he approvingly observed, “the Court has recognized that a right of personal privacy . . . does exist under the Constitution.” Id. (Emphasis added).
By choosing the word, “under,” instead of the word, “in,” to describe the source of the right of privacy, Justice Blackman justified the Court’s decision to ignore the specific texts of a number of constitutional provisions, and to probe below the surface to the “roots” of the First Amendment, to the “punumbras of the Bill of Rights,” and to “the concept of liberty . . . of the Fourteenth Amendment.” Id., 410 U. S. at 152-53.
By digging beyond the constitutional text, the Court declared its independence from it, substituting words and phrases in court precedents for the language of the Constitution. The Constitution simply served as the Court’s springboard to leap from the ” privacy rights” of marriage, procreation, contraception, child rearing and education to a right to terminate a pregnancy, none of which are found in the constitutional text. Thus, it really did not matter to the Court whether it anchored its decision ” in the Fourteenth Amendment’s concept of personal liberty . . . or in the Ninth Amendment.” Id., 410 U. S. at 153.
The Court’s cavalier treatment of this issue was deliberate. It was designed to hide the fact that neither the text of the Fourteenth Amendment nor the text of the Ninth Amendment lends an iota of support to the Court’s opinion. As for “liberty” in the Fourteenth Amendment, prior to Roe v. Wade the Court had consistently defined liberty as a legal term.
In Roe, the Court for the first time considered liberty to be a psychological, sociological, and economic expression. “The unwanted child,” Justice Blackman contended, would cause a woman psychological stress, would impose family responsibilities, and occasion economic hardships. Therefore, he concluded, the woman had a liberty interest protected by the Fourteenth Amendment. Id., 403 U. S. at 153.
What an astounding claim! If taken seriously, it could be extended to any situation that interferes with a person’s desire to be free from responsibility from another, including a handicapped infant, a dying parent, or even a cantankerous spouse. What is even more astounding is that the Court elevated the woman’s desire to be free from her parental responsibilities above the interest of innocent human life in the womb. The Court did so by labeling that life less than fully human. And it camouflaged that ruling with repeated assertions that the Constitution only protects “post-natal’ life. Id., 403 U. S. at 158-62.
That is not true. The Ninth Amendment, cited by the Court in favor of its decision, in reality directly contradicts it. That provision states that the “enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” (Emphasis added).
The word, retain, denotes that the rights expressly guaranteed by the constitutional text should not be construed in such a way as to deny rights not specified, but that preexisted in the Constitution. This rule of construction should have led the Court to ask the question whether its reading of the liberty provision of the due process clause – granting a right to terminate a pregnancy – would “deny or disparage” a right “retained” by the people. Had the Court asked this question – which it did not – it would have found that its distinction between “potential” and “full” human life violated the unalienable right to life as stated in the nation’s charter, the Declaration of Independence. That document, in pertinent part, states that “all men are created equal” and endowed by their Creator with the unalienable right to life and, further, that to secure these rights governments are instituted among men. As for the right to life, the Declaration is clear, that right belongs equally to all human beings – without regard to race, sex, or birth. According to the law of the Creator, as confirmed by the science of biology and genetics, human life begins at conception. Senate Report on The Hum a n Life Bill – S. 158 pp. 10-16 (97th Cong., 1st Sess. 1981).
Under this definition of the right to life, there can be no distinction based upon whether the life is in the womb or out of it, whether the life is “potential” or full. Yet, that distinction lies at the very heart of Roe v. Wade in direct contradiction of the right to life retained by the people in the Ninth Amendment.
In its Preamble, the Constitution states, as one of its purposes, “to secure the blessings of liberty to ourselves and our posterity.” A document designed to secure the blessings of liberty to posterity – the yet to be born – cannot be construed to deny to the posterity the right to life.
Roe v. Wade has done just that. It is, therefore, not law, but an unconstitutional and illegal act usurping the people’s right to laws that secure the unalienable right to life. It is time to denounce Roe v. Wade as completely void and of no legal effect whatsoever.
Dr. Herbert Titus is IAI’s Distinguished Senior Fellow in Constitutional Law, Jurisprudence, and Public Policy.
This article was originally published on February, 1996, by The Forecast, Vol 3. No. 5.
The opinions published here are those of the writer and are not necessarily endorsed by the Institute.
Pro aborts say that they want abortion to be “safe, legal, and rare.” Pro-lifers vehemently disagree.
Abortion, pro-lifers say, can never be safe, certainly not to the child. Nor, they claim, are they safe for the mother, citing the growing literature, demonstrating that even the so-called “medically safe” abortion is dangerous to the mother.
Abortion, they vigorously contend, cannot be legal. It is, they assert, murder and contrary to the nation’s charter commitment that all human beings are equal and entitled to the inalienable right to life. No court and no legislature can change that.
Finally, abortion, they state, will never be rare, so long as it is promoted as a constitutional right. They maintain that women will never be deterred from killing “unwanted” children unless and until abortion is once again condemned by civil society as a morally reprehensible homicide.
Without question, such pro-life rhetoric is principled and powerful. For too long, however, pro-life strategies to restore legal protection for the pre-born child have been pragmatic and anemic. Sadly, their proposals for action have too often matched the pro-abortion slogan that abortion should be “safe, legal, and rare.”
Since Roe v. Wade, the dominant pro-life strategy at the state and local level has been to limit, not prohibit, abortion. To this day, pro-life advocates continue to promote such laws as requiring parental consent before a minor may get an abortion, a 24-hour waiting period, and informed consent. Such proposals concede that abortions are legal, but should be limited so as to make them safer and rarer.
Proposals to ban abortions after the twentieth week of gestation and partial-birth abortions also concede that abortion is legal. Again, such efforts, even if successful, would only prohibit a limited number of abortions, with the possible effect of making abortion safer and rarer.
Even the proposal to prohibit all abortions except in cases of rape, incest, and threat to the life of the mother, is based on the assumption that the killing of a baby in the womb of a mother is legal, even though the baby has done nothing to deserve death. Such a compromise of the principle of the sanctity of innocent human life presupposes that abortion should remain legal, but only very safe and very rare.
In short, the pro-life forces have unwittingly adopted strategies that reinforce the opposition’s rhetoric and undermine their own. As a result, there are any number of politicians who qualify as pro-life so long as they support any measure, no matter how modest, limiting a woman’s right to an abortion.
This must end. If it does not, then innocent human life in the wombs of American mothers will never again be protected. Rather, abortion will remain almost unlimited. And the holocaust will continue, notwithstanding the pro-life protests that the taking of innocent human life should never be sanctioned by a civil society, no matter how safe nor how rare.
What kind of pro-life strategy ought to be adopted that is consistent with pro-life principles and that has a realistic possibility of success- To map out such a strategy, one must first address two preliminary questions.
First, what is the constitutional framework within which the issue should be resolved- Second, what law defines personhood, and does that definition include a child in the womb of the mother?
Since Roe v. Wade, pro-life strategies have been based upon the premise that the Supreme Court’s opinion in that case is the Supreme Law of the Land. Therefore, short of a constitutional amendment or Court reversal, it has been assumed that federal, state, and local officials – executive, legislative, and judicial – must conform their actions concerning abortion to rules handed down by the courts.
This working premise is erroneous. It is both unwise and unconstitutional.
Article VI of the United States Constitution states that three things are the Supreme Law of the Land: “This Constitution … the laws of the United States … made in pursuance thereof; and all treaties … made under the authority of the United States.” Conspicuously absent from this list is a court opinion.
At the time that the Constitution was written, it was universally understood that court opinions were not laws. Therefore, under no circumstances could it be contended that federal court opinions are “the laws of the United States” within the meaning of Article VI.
Nor can it be maintained that a court opinion, even an opinion rendered by the Supreme Court, determines what the Constitution means. Again, at the time that the Constitution was written, it was universally understood that a court opinion interpreting a provision of the Constitution was not equivalent, either in design or effect, to that constitutional provision.
To the contrary, the Supreme Court itself, when exercising the power of judicial review, acknowledged that the Constitution governed the court, not vice versa. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 179-80 (1803). Thus, the Constitution is not what the Supreme Court says it is. Rather, the Constitution is what the Constitution says it is.
Accordingly, when Article VI of the Constitution states that all federal, state, and local officials executive, legislative, and judicial, “shall be bound by oath or affirmation to support this Constitution,” it means that those officials are duty bound to support the Constitution as it is written, not as it has been construed by the United States Supreme Court.
This does not mean that a civil government official may defy a court order rendered by the United States Supreme Court in a case in which that official was a party. It does mean, however, that a state or local official who is not a party has the duty and the power to act according to the constitutional text, even when the action taken is inconsistent with a court opinion interpreting that text.
In addition, under the doctrine of separation of powers, the Supreme Court cannot impose its view of the Constitution on Congress or upon the President. Both Congress and the President have co-equal power with the Court to apply the Constitution, and an independent duty to act according to the Constitution as they understand it, not as the Court has determined it to be.
This is the very essence of the rule of law. No human institution has the final and supreme power to determine what the law is. Otherwise, the rule of law would be reduced to the rule of those who possess such final and supreme power.
This wisdom is reflected in the checks and balances established by the Constitution, for as James Madison wrote in Federalist No. 47, “the accumulation of all powers … in the same hands … may be justly pronounced the very definition of tyranny.”
In Roe v. Wade, the Supreme Court decided that the Constitution does not recognize a child in the womb of a mother as a “person” entitled to the protection of the due process clause of the Fourteenth Amendment. To support this conclusion, they cited a number of constitutional provisions in which “person” can only be understood as referring to a human being who has been born. Roe v. Wade, 410, U.S. 113, 156-57 (1973).
Since Roe v. Wade, efforts to define a pre-born child as a person have assumed that the child, to be a person, must be one according to the constitutional text in order for that child to achieve the status of personhood and, thereby, to be entitled to protection against abortion.
For example, in the early 1980s, the United States Senate had before it “The Human Life Bill.” This Bill defined “person” for the purposes of the due process clause of the Fourteenth Amendment in such a way as to include a human baby in the womb of a mother from the very moment of conception. See Report to the Committee on the Judiciary, United States Senate from its Subcommittee on Separation of Powers pp. 1-2 (1981).
One could argue that Congress could not have done otherwise, because it was acting pursuant to its authority under the Fourteenth Amendment which limits its power to enforcing the terms of that Amendment. Hence, any Congressional definition of person must conform to the constitutional textual meaning of that word.
But the findings contained in the Report proposing the Human Life Bill were not so confined. To the contrary, they went behind the constitutional text to the common law as reflected in the nation’s founding charter, the Declaration of Independence.
That law, the Report stated, established that all human beings are legally equal. Furthermore, the Report continued, the very purpose of the Equal Protection Clause of the Fourteenth Amendment was to enforce that equality rule upon the states. Such a rule of equivalent value of all human life, the Report concluded, demanded that abortion be outlawed. Id. at 15-16.
Even though the Report drew this conclusion, it did not incorporate it into the text of the Human Life Act. Instead, it left it to the discretion of every state to decide whether to prohibit abortions, and if so, by what rules. Indeed, the Report emphasized that the Human Life Bill did not make abortions illegal, but only made it possible for state legislatures to make them illegal. Id. at 19-20.
By leaving it to the States to decide whether a child in the womb of the mother is a human being deserving the full protection of the law, the Report chose not to embrace the common law definition of personhood. That decision has plagued the pro-life movement to this day and in two distinct ways.
First, it tacitly conceded that state and local legislatures may define legal personhood in any way that they choose, notwithstanding the life principle embraced by the nation’s charter. Second, it assumed that Congress has no authority to protect innocent human life in the womb of a mother if the states choose not to provide such protection. Neither of these assumptions is true.
As for Congress, the very purpose of the Equal Protection Clause was to deny to the states any power to withhold from any class of human beings the benefits and protections of the common law. As the Supreme Court observed in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873), the Clause was specifically designed to protect former slaves who were being denied their rights to life, liberty, and property because states were not enforcing the common law on their behalf.
The Equal Protection Clause was designed to guarantee such common law protection by denying to the States any power to classify or treat any human being as anything but a legally recognized person. That is exactly what states are doing when they follow the Supreme Court’s ruling in Roe v. Wade – denying to a class of human beings the protection of the common law solely on the ground that pre-born children are not persons.
Following the adoption of the Fourteenth Amendment, Congress enacted a number of criminal statutes designed to outlaw such practices. One of these statutes protects “any inhabitant” from acts “under color of any law, statute, ordinance, regulation, or custom” that “willfully” deprive him “of any rights, privileges, or immunities secured or protected by the Constitution” or of “full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” 18 U.S.C. Section 242.
This law should be enforced by a President of the United States against abortion providers and women seeking such services, especially when those services are funded by state law or otherwise given special encouragement or protection by that law.
To be sure, such a prosecution would succeed only if there is proof that the abortion providers and women intended to deprive the pre-born child of rights secured by the Constitution or by the laws of the United States. Such proof could be provided by reference to the “rule of law” governing life in the Declaration of Independence and, thereby, meet this burden. See Screws v. United States, 325 U.S. 91, 103 (1945).
Obviously, this problem could be resolved if Congress acted by declaring that human life begins at conception and by redrafting the Human Life Bill in terms of the Equal Protection Clause. Such a Bill would make it clear that all human life is to be equally protected and that any state that does not afford such equal protection is violating the common law definition of person.
In addition to the enforcement of existing or future criminal statutes, the President may instruct the Attorney General to bring civil suits seeking injunctions against abortion clinics and abortion doctors on the grounds that they are public nuisances.
Such a suit would be based upon the same grounds that are set forth in the civil rights statutes set forth above.
Such a suit could very well succeed, especially if based upon evidence that the failure of states to protect the unalienable right to life imposes serious adverse consequences upon the “general welfare” of the country. In defining the general welfare in this context, emphasis should be placed upon the adverse impact that abortion has upon the national economy. Such a strategy is not unprecedented. In re Debs, 158 U.S. 564 (1895).
The President may also, under his constitutional authority to “take care that the laws be faithfully executed,” refuse to spend any money appropriated by Congress for the purpose of supporting any activity that facilitates or promotes abortion. This means that the President may cut off all federal funds to such abortion promoting organizations as Planned Parenthood and to such abortion facilitating activities as fetal tissue research.
This power is available to the President even if Congress should mandate that the funds that it has appropriated must be spent. Such a mandate violates the constitutional vesting of all of the executive power in the office of the President because the very essence of executive power is the discretion not to enforce a law. See Marbury v. Madison, supra.
Finally, the President has the power to appoint only judges to the federal bench, including the United States Supreme Court, who have clearly and consistently affirmed the legal personhood of the pre-born. Indeed, his constitutional oath of office to “preserve, protect, and defend the Constitution of the United States” requires him to exercise his appointment power consistent with his understanding of the Constitution, independent of either the judicial or the legislative branches.
In fact, the President’s oath of office, the only one spelled out in the Constitution, makes him the primary protector of the Constitution. Only the President is, by the constitutional text, commanded to “preserve, protect, and defend” the Constitution. All other officers are commanded by the Constitution only to “support” it.
As the nation’s chief constitutional officer, the president has the duty and authority to issue a Presidential Proclamation affirming the right to life of the pre-born child and to call upon state governments to protect that right with all deliberate speed and appropriate means.
Such a Proclamation would set the stage for aggressive action at the state level to restore the laws prohibiting the taking of innocent human life from the womb to the tomb.
In many states, statutes prohibiting abortion remain unrepealed and available to local prosecutors to bring criminal actions against abortion providers. While such laws may very well provide for an exception to protect the life of the mother, they afford statutory authority to a prosecutor who takes seriously his duty to “support” the Constitution’s high regard for the right to life.
The problem today is that state prosecutors assume that their duty to support the Constitution means obedience to Supreme Court opinions, even when they were never parties to the cases. Rightfully understood, their duty is to interpose their office between Roe v. Wade, a constitutionally erroneous opinion, and the people whose rights they are duty bound to protect.
Even in states where the statutes have been changed to conform to the Roe formula, a prosecutor may still have ample authority under the state’s law and constitution to bring criminal actions against abortion promoters and providers.
In Virginia, for example, producing an abortion, except to preserve the life of a mother, remains a felony. At the same time, by statute, a physician is permitted to perform abortions according to different rules governing the first, second, and third trimesters of a woman’s pregnancy.
While such a statutory scheme may pass the judicial test laid down in Roe v. Wade, it does not meet the constitutional test laid down by Article I, Section 1 of the Virginia Constitution which reads:
That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact, deprive or divest their posterity; namely the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
While the United States Constitution may not afford protection to the pre-born, this provision clearly does. And what does a state do when it fails to protect innocent life in the womb of a mother, but “divest … posterity” of the rights of life, liberty, and property.
Virginia laws that permit the taking of the lives of pre-born children violate this constitutional principle. And where a state constitution lays down a higher standard than the United States Constitution, the state constitutional provision provides an independent and adequate state ground for a state law prohibiting abortion.
In addition, Roe v. Wade can be avoided by any state legislature that challenges its factual underpinnings. The Roe decision is based upon a number of factual assumptions that, if true in 1973, are no longer true today.
The major factual premise of Roe is that a medically safe abortion poses no significant health risks to the mother. Numerous studies since Roe have proved that assumption false. Physiological complications, including uterine perforations, excessive bleeding, and endotoxic shock, attend even the normal abortion process. Other physiological complications, such as cervical and ovarian cancer, placenta previa, pelvic inflammatory disease, appear after an abortion and are causally linked to it.
And there are numerous psychological and emotional side effects. Among the significant emotional risks are guilt and depression, suicidal ideation and sexual dysfunction. Among the psychological disorders are Posttraumatic Stress Disorder and Postabortion Syndrome.
These emotional and psychological traumas contribute to a variety of sociological impairments, including psychic numbing, substance abuse, and relationship instability. This, in turn, adversely impacts family and other intimate associations.
None of this came before the Court in Roe v. Wade. Nor did the Court have before it evidence that the medical profession does not adequately protect the interests of women who obtain abortions in clinics. Nor did it have before it the threat that permitting abortion poses to the sanctity of life generally or to the economy.
Given these glaring factual omissions, Roe v. Wade is no longer a binding legal precedent for, as the High Court itself has observed, changes in the facts upon which a court ruling rests is sufficient reason not to follow that ruling. Planned Parenthood v. Casey, 505 U.S. -, 120 L Ed 2d 674, 703-06 (1992).
It is time for a new pro-life strategy, one based squarely upon the principle that the taking of innocent life is never justified. Such a strategy would seize the moral and constitutional high ground in the abortion debate and has a realistic chance to succeed.
I appreciate the opportunity to speak to you on this particular topic. I’m going to take a little bit of a different approach than I know the rest of the panel members are going to take, and that’s perhaps good because I think we need to examine this question in a more full constitutional context, particularly with regard to the Federal Judiciary. And so I’m focusing my remarks not so much on impeachment as it is to focus upon a forgotten part of Article III of the United States Constitution, Section 1, which says that federal judges hold office during good behavior. We have, I believe, in this country assumed that when a person is appointed as a federal judge, that that person has a life-time appointment to the federal bench. That is not what the Constitution says. He has an appointment only during good behavior.
Now the reason why this is important is because we have been told—and I remember when I was in law school – I was taught the notion that the only remedy that there was available to a misbehaving judge was the impeachment remedy, or perhaps that the judges themselves would finally go to that judge’s office and ship him off to pasture. As a matter of fact, I believe in my lifetime we’ve seen where judges finally came together and got a judge to retire because they no longer could perform their duties as a judge. But that’s just simply not what was envisioned in the original constitutional text – that impeachment is only one remedy with regard to a judge who is not doing his job; that as a matter of fact, the good behavior is not only a standard, but it is also a remedy that’s available to us for judges who are usurping, particularly usurping legislative power.
Now, let’s look at this structurally because you will see some parallel structures in the Constitution where there’s an ordinary remedy for every elected member of the executive and . . . of the legislative and then the one of the executive branch and every appointed member of the judicial branch, there’s an ordinary removal remedy and there’s an extraordinary removal remedy. Now, of course, with the president, the ordinary removal remedy is, you vote him out of office or you don’t vote them in office. It’s a direct people-election remedy. And, of course, the extraordinary remedy with regard to the president is impeachment, and that’s very clear from the constitutional text.
Likewise, with regard to members of Congress. The ordinary remedy with regard to a member of the House or the Senate is again, election. With the House members, it’s every two years. With regard to the Senate, it’s every six years. The extraordinary remedy, which is not well known with regard to a disorderly member of the House or the Senate, is found in Article I, Section 5, where the House or the Senate itself has the power by a two-thirds vote to remove from the House or from the Senate a disorderly member. That’s the extraordinary remedy.
Likewise with regard to courts. The ordinary remedy of a judge who is misbehaving is a remedy that was well known at the Common Law, and that was a civil remedy for forfeiture of office upon proof of misbehavior. Impeachment was considered to be the extraordinary remedy for a judge who had committed extraordinary offenses rather than the ordinary offense of misbehaving, violating the standard of good behavior.
Now, Congressman David Stone—and this is not a well-known story—from North Carolina, spoke in a House debate and it was dated January 13, 1802. And this is what he said about these two remedies available with regard to judges: He says, “A judge doubtless shall be removed from office by conviction or impeachment and conviction, but it does not follow that they may not be removed by other means.” He said, “High crimes and misdemeanors, which is the standard for impeachment, always includes those that would be guilty of misbehavior in office. But there’s a various species of misbehavior which may render it exceedingly improper for a judge to continue in office that doesn’t reach the level of a high crime and a misdemeanor as the Constitution defines it.”
Now, Stone is right about that. The impeachment process was well known at Common Law which involved the legislative branch and, of course, as our Constitution sets it forth, the House of Representatives exercises executive power. They’re like the prosecuting attorney that investigates the charge and brings the charge – that’s what impeachment means. The Senate then performs the judicial function of trying whoever it is who’s charged on those charges, and the Constitution, of course, defines what a high crime and misdemeanor is. It sets it forth as the standard upon which the impeachment process is governed. That was well known at the Common Law. The parliament, of course, having that authority, the House of Commons like the House of Representatives, the prosecutorial power and the House of Lords having the trial power such as the Senate.
But there was also a proceeding at Common Law that was known as a “civil proceeding for forfeiture of one’s office for misbehavior.” This civil proceeding could be brought in a Common Law court by the person who appointed the officer; and then through a judicial proceeding, that person could be removed from office for misbehavior, and misbehavior was a standard that you might say is lower than high crime and misdemeanor.
Now, how do you define good behavior? If you look at Hamilton’s Federalist #65, you will see that Hamilton understood that when this word “good behavior” was placed in Article III, Section 1 of the United States Constitution, they had not just invented this term. This was a term that dated back to the sixteenth century and perhaps even before. It was a term that was taken from English law and practice of longstanding. In 1597, for example, good behavior was defined this way: “Every voluntary act done by an officer contrary to that which belongs to the office. Every voluntary act done by an officer contrary to that which belongs to the office is a violation of the good behavior standard.”
Now notice, what that means is that if a judge exercises legislative power that’s not common to the office of the judge, then that judge has violated the standard of good behavior. Under the Common Law rule, he forfeits his office. He’s out of there. And the executive officer who appointed the judge to that particular position had the authority to go into a court of law and get that person removed from office under the Common Law Civil Forfeiture Proceeding.
Abuse of office, nonuse of power, a refusal to exercise judicial power and neglect of judicial duty – all of these would have been in violation of the standard of good behavior. Now, abuse of office—it was well understood that if a judge usurped the power of another officer, that that judge has clearly violated the standard of good behavior.
Now what does that mean for us today? What it means is this: Judges today believe that they make law. As a matter of fact, in law schools across the country, the first thing that a young lawyer learns before they learn anything else is that judges are the ultimate and supreme law-maker. As a matter of fact, Al Gore couldn’t have had the defense that he had that he didn’t violate any law, except it’s based upon the assumption that until a court decides whether a statute means what someone claims it to mean, it’s not the law. And since no vice president had ever been found guilty under the particular statute, how could he have violated the law? Because the law is what the courts say it is, not what the legislature says it is. And this, of course, is the major problem we have in America today—is that we have judges in courts across America who think that it’s their job to make the law. When it’s as a matter of fact, under the Common Law rule of good behavior, and this is a substantive rule that’s written into the Constitution of the United States, is that the Common Law rule is that a judge is to discover the law, state the law, and apply the law – not make it up.
So any judge that persists in office to claim that he has the authority to make law is violating the standard of good behavior under the Constitution of the United States and therefore, is subject to forfeiture of office under the Common Law procedure of a civil action for the forfeiture of office.
Now, what’s important about this is to recognize that Chief Justice John Marshall, when he decided Marbury and Madison – if you go back and read that case carefully – he understood that he was bound by what was written in the Constitution. Now, you can debate whether or not Chief Justice Marshall read the Constitution correctly or not. But the whole institution of judicial review is based upon the assumption that the Constitution controls the court, not the other way around. What we have in America today are judges who believe that THEY control the Constitution and the Constitution means what THEY say it is.
That is a violation of Article III, Section 1, the standard of good behavior; because what they’re doing is they’re usurping the authority of the people to have written in the Constitution the law of the land.
It’s not the court who decides what the law of the land is – it’s the people who have formed the written covenant for the very purpose of controlling government, including judges. As a matter of fact, if you go back and read Chief Justice Marshall’s opinion in Marbury v. Madison, you will see he says that the Constitution as it is written is an instrument that governs the court as much as it’s an instrument that governs the legislative body.
So, if we are true to the substantive standard of good behavior, then we would find today that most judges are misbehaving. Most judges who have been appointed to the federal bench today are violating the standard of good behavior because they’re violating the substantive norm of good behavior, namely that a judge cannot make law; a judge can only discover, state it, and apply the law. They have violated that standard; they have usurped legislative power.
Now, one must also examine good behavior as having also established a procedure by which that standard would be applied. If you again go back and look at the term “good behavior” at Common Law, you will find that when the standard of good behavior was used in applicability to an officer of government, it implied or presupposed a certain Common Law procedure by which that substantive standard would be enforced. At Common Law, a Writ of Scire Facias that was available to the one who appointed the officer to go into a Common Law court and file in that court of law a claim that the officer had violated the standard of good behavior.
Now, if you go back and look at history, you will not find in history any judge who is ever charged with misbehavior under the standard of good behavior primarily because in the early history when this particular writ was being developed, judges did not serve under a standard of good behavior. They served at the pleasure of the king. But over a course of time, and you will find this in this seventeenth century beginning in 1628 and on through the late seventeenth century that judges began to win the battle that they didn’t just serve at the pleasure of the king. And you will find a number of judges who claimed that they were removable only upon a Writ of Scire Facias upon proof of misbehavior. So the judges themselves in the Common Law applied to themselves this Common Law procedure of a Writ of Scire Facias to them if there was a charge of misbehavior.
Now I believe that Article III, Section 2 should be understood not only in terms of incorporating the substantive Common Law of good behavior, but also the procedural authority of the appointing officer to bring charges of misbehavior in a court of law on that substantive standard as defined in Article III, Section 1. It is my view that the President then has authority as the Chief Executive Officer of the United States to bring a Writ of Scire Facias in a federal court on the ground that any judge has violated the standard of good behavior and would be able to bring that charge in a federal court against any judge who has been appointed under the appointment power of Article II.
Now, what’s important here is to realize that this is not a breach of separation of powers as many people have argued. Many people have argued that the standard of good behavior is a self-enforcing standard in which the judges would have the executive power, as well as the judicial power, as well as the legislative power. That sounds like a federal judge today. But I believe that the Common Law term acknowledged the separation of power’s principle and therefore, the President – even under a Constitution that separates powers – would still have the authority to initiate a charge and, of course, the legislature would have the authority to further define good behavior.
What’s important in this particular situation, however, and one which I think the Congress of the United States need to be involved, is I do believe that any charge of misbehavior under Article III would have to be brought before an Article III court. Now, some people might think that’s like bringing the fox into the hen house. I mean, how is a federal judge going to sit in judgment upon one who’s a member of the Federal Judiciary. And this is where Congress comes in.
I believe that Congress has the authority in order to have an independent judicial branch exercise this power with regard to good behavior. Congress can authorize the state courts. After all, state judges under Article VI under of the United States Constitution have a duty to support the Constitution. This is a constitutional standard laid down in Article III on federal judges. This would be an opportunity for Congress to pass a statute that authorizes the President to bring the charge in a state court, rather than in a federal court and in that way, establish an independent judicial appraisal of the good behavior standard that governs the federal judiciary. Probably that would have to be at the deference of the United States Supreme Court because the United States Supreme Court has the judicial power by the Constitution and it would ultimately come before the United States Supreme Court should an appeal process be provided for.
But what’s important here, I believe, is for us today to recognize that judges need to be governed by an ordinary remedy as well as an extraordinary remedy, and the extraordinary remedy – the impeachment process – is probably one that primarily should be brought with regard to the United States Supreme Court because of their ultimate authority in terms of exercising the judicial power of the United States. Is this likely to happen? Well, I don’t know. But it seems to me that Congress has some opportunity here to corral a runaway judiciary that has so long been operating independently of the Constitution, independently of the people, independently of those who appoint them, and I believe it’s time in America to say no, federal judges do NOT have lifetime appointments – they have only as Article III, Section 1 states, “appointments during good behavior,” and we need to put some feet to the good behavior standard.
Thank you very much.
Dr. Herbert Titus is IAI’s Distinguished Senior Fellow in Constitutional Law, Jurisprudence, and Public Policy.
This lecture was delivered on June 6, 1997, and published by The Christian Committees of Correspondence.
The opinions published here are those of the writer and are not necessarily endorsed by the Institute.
The mainstream media tell us that the Supreme Court legalized abortion with its Roe v. Wade decision in 1973. The media also tell us that there is nothing we can do about it because Roe v. Wade is the “law of the land.”
Nothing could be further from the truth. Abortion is not legal in America! Recognition of this fact is the first step for the pro-life movement in its campaign to turn back the murderous scourge on innocent babies. Indeed, heart disease (738,781 deaths per year) is not the number one cause of death in the United States – abortion is, at well over a million deaths per year.
Article VI of our nation’s founding document declares that “[t]his Constitution, and the laws of the United States.. .made in pursuance thereof; and all treaties…made…under the authority of the United States shall be the supreme law of the land.”
What is clearly missing from this Constitutional list of supreme laws is a court opinion. This was not an oversight. Our Constitution’s writers knew that a court opinion could never be law; much less the supreme law of the land. This is especially true if that court opinion contradicted the Constitution itself.
As can be plainly seen from the Constitutional text, a statute enacted by Congress is the supreme law of the land only if made “pursuant to” (in conformity with) the Constitution. If a statute passed by the people’s representatives is not law unless it conforms to the Constitution, then how can a court opinion decided by unelected judges be given a higher status?
When Chief Justice John Marshall established judicial review-the right of the court to review a statute to see if it conformed to the Constitution-he said that the written Constitution was just as binding on the courts as it was on Congress. Marshall, then, did not establish the supremacy of judges over the Constitution-but the supremacy of the Constitution over Congress, the President and the courts.
Our Founding Fathers resoundingly rejected the idea of judicial supremacy. They did not empower judges to usurp a power, rightfully belonging to the people and thereby become a law unto themselves. That is why they put the Constitution in writing-so that the original founding laws and principles would not be mistaken or forgotten. In this way they believed that the Constitution would become the fixed law of the land.
Just a little more than 100 years ago, the American people knew that Supreme Court opinions did not become the law for the whole country, but bound only the parties to the case. That is why Abraham Lincoln rejected the Supreme Court’s decision in the infamous Dred Scott case. Lincoln knew that even though the Court declared-in the name of the Constitution that black people had no rights that white people were bound to respect, that ruling was not the law of the land.
What has happened to America since the days of Lincoln?
Things began to change when Oliver Wendell Holmes, Jr., ascended to the Supreme Court. He introduced the idea that law changed with changing times, and that it was the business of judges to make the necessary changes.
Holmes’s evolutionary philosophy of law soon transformed the Constitution from a document of fixed rules and principles to one reflecting the latest court pronouncements. In this way, the judges became the nation’s supreme lawmakers, displacing the Congress and legislatures on matters ranging from abortion to pornography.
But judges have no right to make law. Their job is to discover the law, state it and apply it. Their role is like that of an engineer who designs a bridge according to the
discovered laws of the natural world, not according to “laws” that he has made up.
If an engineer should design a bridge contrary to natural law, there is no question that the government officials who employed that engineer would reject his design. So it should be with a court opinion. If it is contrary to the Constitution, then the president, the Congress and the fifty states’ governors and legislators should reject that opinion.
This is what their oath of office demands. The president takes an oath to “preserve, protect and defend the Constitution,” not Supreme Court opinions. Further, Article II, Section 3 states that the president is duty-bound to “take care that the laws be faithfully executed.” Any court opinion that is contrary to the Constitution is, by definition, not law. Therefore, the president must not enforce it.
That was what President Lincoln did with the Dred Scott decision. He refused to enforce it as the law of the land.
That is what presidents today should do about Roe v. Wade. Pursuant to his Constitutional oath, the president should issue a proclamation declaring Roe v. Wade to be illegal, and declaring that the human fetus is a person entitled to the full protection of the right to life by the states.
At the state and local level, the people should insist that the laws that are still on the books be enforced against abortionists. In Virginia, for example, abortion is still a Class 4 felony. While other Virginia statutes have incorporated the Supreme Court’s ruling in Roe v. Wade, those statutes are unconstitutional. They violate Article 1, Section 1 of the Virginia Bill of Rights which denies to the state legislature or any other civil authority any power to deprive the state’s “posterity” (the yet-to-be-born) of their “inherent” rights to “life, liberty, and property.”
In Virginia, then, pro-lifers do not have to change the state law to protect innocent life. They don’t have to look to the president or Congress for action. They don’t have to elect a pro-life governor or state attorney general. They can act now, petitioning their local Commonwealth’s Attorney to prosecute abortionists under the state law and defend the right to life of the preborn under the state Constitution. And if the Commonwealth’s Attorney chooses not to prosecute, then the people can vote him out of office and elect another who will do his prosecutorial duty consistent with his Constitutional oath.
A petition drive has already begun in Virginia. The governor and the attorney general have been petitioned to speak out, urging the Commonwealths’ Attorneys to prosecute the abortionists. While neither office has the authority to command such prosecutions, such a statement would have a profound moral impact. Some local prosecutors have also been petitioned to take action now.
As concerned citizens, it is our duty to petition the Commonwealth’s Attorneys to make decisions according to what the Constitution demands, and not according to what the Supreme Court decides. And it is our further duty to continue to seek justice until we receive it.
This article by Herbert W. Titus, JD, and Christine Ross first appeared in the May/June ‘99 issue of “Life Advocate” magazine.