CHRISTIAN PATRIOTS
FOR LIFE
- Education Series -
A Matter of Life & Mass Murder
- Ending "Legal" Abortion -
Toward a Constitutional Remedy
The Legal Argument
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Table of Contents:
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Removal of federal court jurisdiction (VERY IMPORTANT)
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We The People Act <<< (MOST IMPORTANT)
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Introduction:
U.S. Abortion Laws Before Roe v Wade
by Brian Young
In the years prior to and immediately after the American
Revolution, colonists and citizens followed the rule of law brought by
British settlers, the "common law." Rather than being a code of
statutes passed by a legislature and printed in a book, the common law
was a set of legal standards established in England through court
decisions and legal custom.
According to Sir William Blackstone, the renowned 18th century
English jurist, under common law, the abortion of a 'quickened' fetus
was a 'very heinous misdemeanor.' At that time the penalty for
misdemeanors could be severe; loss of a limb, confiscation of property
or life in prison.
'Quickening' - when a pregnant woman first feels her child move -
generally occurs in the fourth month. Scholars have noted that the
common law requirement of a 'quickened' baby for the crime of
abortion was probably based on a very practical consideration.
Since there were no pregnancy tests in the 18th century, evidence
that a baby's movement had been felt might have been the only way
to establish with any certainty in a court of law that a pregnancy had
existed.
The first US law against abortion, adopted by Connecticut in 1821,
criminalized the administration of poison or of any "destructive
substance" to induce a miscarriage. It applied only to cases where the
baby had "quickened."
In 1840, however, Maine became the first state to pass a law that
expressly protected all babies, "quick or not."
The abandonment of the "quickening" requirement coincided with the
19th century discovery of how conception takes place. The public,
lawmakers and jurists were becoming aware of the scientific fact that
life begins when a sperm enters an ovum.
During the first decades of the 1800's, scientists began to understand the cellular
basis of life and for the first time were able to observe the process of fertilization in
mammals. As the stages of development became clear, it also became clear that
abortion kills a living human being, no matter what the stage of the child's
development. The resulting scientific knowledge about the process of conception
and development led to efforts to enact stronger bans on abortion. In addition,
scientific progress allowed for surgical means of performing abortion, and abortion
was perceived to be on the increase. Beginning in 1859, the American Medical
Association called for strong anti-abortion laws and vigorous enforcement of them.
In view of the claim by twentieth century abortionists that physicians did this only
to protect their own profession or solely to protect women's health, it is useful to
quote the doctors themselves on why they wanted action by the states:
"The first of these causes is a wide-spread popular ignorance of
the true character of the crime--a belief, even among mothers
themselves, that the foetus is not alive till after the period of
quickening.
"The second of the agents alluded to is the fact that the profession
themselves are frequently supposed careless of fetal life; . . .
"The third reason of the frightful extent of this crime is found in the
grave defects of our laws, both common and statute, as regards
the independent and actual existence of the child before birth,
as a living being.
"In accordance, therefore, with the facts in the case, the Committee
would advise that this body, representing, as it does, the physicians
of the land, publicly express its abhorrence of the unnatural and
now rapidly increasing crime of abortion; that it avow its true nature,
as no simple offence against public morality and decency, no mere
misdemeanor, no attempt upon the life of the mother, but the wanton
and murderous destruction of her child; . . . "
Volume 12, Transactions of the American Medical Association,
pp. 75-78 (1859).
The AMA adopted the recommendation described above and sponsored initiatives in
all states, spurring most legislatures to enact strong prohibitions upon abortion that
swept away the "quickening" distinction. In the remaining states, abortion remained
prohibited by common law.
by Brian Young
Pro-abortion historians claim that these laws were passed
primarily, if not solely, to protect women from possibly fatal
abortions. Concern for pre-term babies was not a factor, they claim.
Yet, as law professor Joseph Dellapenna has noted, all surgeries at
that time involved substantial risks of death. If legislators were
motivated to pass anti-abortion statutes only to protect women, why did
they not protect other patients by banning other potentially dangerous
fatal elective surgeries?
Coincidentally or not, during this period of pro-life legislative
activity Congress passed and 28 states ratified the 14th Amendment,
prohibiting any state from depriving "any person of life, liberty, or
property without the due process of law."
By 1910, every state except Kentucky had passed an anti-abortion
law (and Kentucky's courts had declared abortion at any stage of
gestation to be illegal).
By 1967, not much had changed. In 49 states, abortion was a
felony; in New Jersey, it was a high misdemeanor. Furthermore, 29
states banned abortion advertising, and many outlawed the
manufacture or distribution of abortifacients.
In 1967, though, state abortion laws began to change, but only
after years of organized campaigns by pro-abortion forces.
The American Law Institute (ALI) proposed, in its 1959 model
criminal code for all the states, a "reform" abortion law. The model
bill, approved by ALI in 1962, declared that abortion should be
permitted for the physical or mental health of the mother, for fetal
abnormality, and for rape or incest.
While the leaders of the American legal community were promoting
radical changes in state abortion law, a 1962 case in Arizona generated
sympathetic press coverage of the notion of "justifiable abortion."
Mrs Sherri Finkbine, a married mother, made public her intention to
abort her fifth child. She had taken some tranquilizers/sleeping pills
her husband had brought home from a trip to England. The pills turned
out to be Thalidomide, a drug that had become associated with birth
defects. Fearful of giving birth to a handicapped child, Mrs Finkbine
traveled from Phoenix to Sweden, where she had her baby aborted.
In June 1967, the American Medical Association voted to change that
body's long-standing opposition to abortion. With a new resolution, the
AMA now condoned abortion for the life or health of the mother, for a
baby's 'incapacitating' physical deformity or mental deficiency, or for
cases of rape or incest.
That same year, Colorado, North Carolina, and California became the
first states to adopt versions of the ALI "reform" abortion law. By
1970, though, four states - New York, Alaska, Hawaii and Washington -
passed laws that basically allowed abortion on demand. Of those four,
New York's was the only law without a residency requirement and the
state quickly became the nation's abortion capital.
The pro-abortion onslaught was beginning to face opposition,
though, as pro-life forces organized. In 1972, the New York legislature
voted to repeal the state's liberal abortion law, but Governor Nelson
Rockafeller vetoed the repeal. Ballot questions in Michigan and North
Dakota that same year attempted to decriminalize abortion; the measures
were defeated by majorities of 63 percent and 78 percent, respectively.
Just as pro-lifers were beginning to turn the tide however, the
Supreme Court handed down Roe vs Wade in January 1973. With one
judicial stroke, over 200 years of legal protection for the unborn was
rendered null and void. For the first time in American history,
abortion was the "law of the land".
See also:
The United States Constitution
and States' Government
The Virginia Declaration of Rights strongly influenced Thomas Jefferson in writing
the first part of the Declaration of Independence. It later provided the foundation
for the Bill of Rights.
Here, in exalted and unforgettable phrases, Jefferson expressed the convictions in
the minds and hearts of the American people. The political philosophy of the
Declaration was not new; its ideals of individual liberty had already been
expressed by John Locke and the Continental philosophers.
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What Jefferson did was to summarize this philosophy in "self-evident truths"
and set forth a list of grievances against the King in order to justify before the world
the breaking of ties between the colonies and the mother country.
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Adopted unanimously June 12, 1776 Virginia Convention of Delegates drafted by
Mr. George Mason:
I 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.
Robert C. Cannada, Senior Counsel, Butler, Snow, O'Mara, Stevens & Cannada,
PLLC, Jackson, Mississippi, "America's Choice: A Limited Government Or A
Totalitarian Government," The National Lawyers Association Review, Winter 1996.
"The National Lawyers Association takes the position that the practical effect of
the legal connection or relationship between the Declaration and the Constitution
is that the Constitution is to be interpreted in the light of the principles set forth in
the Declaration.[...] The Preamble introduces and explains the purpose of
The U.S. Constitution, and links it to The Declaration of Independence."
Preamble to the U.S. Constitution," We the People of the United States,
in Order to....secure the Blessings of Liberty to...our Posterity, do ordain and
establish this Constitution...." Founders' Constitution
The source most often cited by the founding fathers in their political writings
(1760-1805) was the Bible, which accounted for 34% of all citations. Deuteronomy
was the most frequently cited book of the Bible." Charles S. Hyneman (Editor),
Donald S. Lutz (Editor), American Political Writing During the Founding Era:
1760-1805 (Indianapolis, IN, U.S.A.: Liberty Fund, Incorporated, 1983)
(Referenced in John Eidsmoe, Christianity and the Constitution, Baker Books,
pp. 51,52)
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The National Lawyers Association takes the position that the practical effect of the
legal connection or relationship between the Declaration and the Constitution is that
the Constitution is to be interpreted in the light of the principles set forth in the
Declaration.[...] The Preamble introduces and explains the purpose of The U.S.
Constitution, and links it to The Declaration of Independence." Robert C. Cannada,
Senior Counsel, Butler, Snow, O'Mara, Stevens & Cannada, PLLC, Jackson, Mississippi,
"America's Choice: A Limited Government Or A Totalitarian Government," The National
Lawyers Association Review, Winter 1996. NLA Review Winter 1996 - AMERICA'S CHOICE
"....all Men are created equal...endowed by their Creator with...unalienable Rights, that
among these are Life....to secure these Rights, Governments are instituted...."
The Avalon Project Declaration of Independence, July 4, 1776 A Creator either exists,
or doesn't. If there is no Creator, Jefferson's appeal to the "Supreme Judge of the world"
in the Declaration of Independence is pure nonsense and so are your RIGHTS! Without
a Creator, your highest appeal is to the State, where might takes rights. Think about it,
next time you hear someone scream separation of Creator and State. Think about what
a person means when they emphatically state, "there are no absolute truths" in
contradistinction to Jefferson's: "We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights,
Governments are instituted...."
The U.S. Constitution
the Roe v Wade OPINION
and it's progeny
 When the right to permit mass murder on demand couldn't
be discovered in the Constitution, it was fabricated by U.S.
Supreme Court majority opinion in defiance of science,
ethics and the fundamental purpose of government itself!
An appeal to the "Supreme Judge of the world" would have
been futile.
Like the Devil himself, "For you have said in your heart:
'I will ascend into heaven, I will exalt my throne above the
stars of God; I will also sit on the mount of the
congregation . . . ; I will ascend above the heights of the
clouds, I will be like the Most High' " (Is. 14:13,14), the
sinister seven of Roe v Wade infamy essentially
asserted same - We will exalt our throne above the
Constitution - We have evolved from mere judges bound
by the Constitution into being the Supreme Law.
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The Worst Constitutional Decision of All Time
"As noted before, the Supreme Court did not invent abortion. There might be
plenty of abortion, perhaps authorized or permitted by state laws, even without
Roe and Casey. Moreover, the Court is, arguably, not directly responsible for
the wrong moral choices of individuals that the Court's decisions permit.
Finally, the Court is not responsible - cannot be responsible, consistent with
its constitutional role - for correcting all injustices, even grave ones. But the
Court is responsible for the injustices that it inflicts on society that are not
consistent with, but in fact betray, its constitutional responsibilities. To the
extent that the Court has invalidated essentially all legal restriction of abortion,
it has authorized private violence on a scale, and of a kind, that unavoidably
evokes the memories of American slavery and of the Nazi Holocaust. And by
cloaking that authorization in the forms of the law - in the name of the Supreme
Law of the Land - the Court has taught the American people that such private
violence is a right and, by clear implication, that it is alright. Go ahead. The
Constitution is on your side. This is among your most cherished constitutional
freedoms. Nobody ought to oppose you in your action. We have said so.
The decision in Casey, reaffirming Roe and itself reaffirmed and extended in
Carhart, in my view exposes the Supreme Court, as currently constituted, as
a lawless, rogue institution capable of the most monstrous of injustices in the
name of law, with a smugness and arrogance worthy of the worst totalitarian
dictatorships of all time. The Court, as it stands today, has, with its abortion
decisions, forfeited its legal and moral legitimacy as an institution. It has forfeited
its claimed authority to speak for the Constitution. It has forfeited its entitlement
to have its decisions respected, and followed, by the other branches of
government, by the states, and by the People. The enthusiasm of liberal
intelligentsia for the Court's abortion decisions, the sycophancy of the law
professorate, of the legal profession, and of our elected officials, and the docility
of the American people with respect to our lawless, authoritarian Court rivals the
pliancy of the most cowardly, servile peoples toward ruinous, brutal,
anti-democratic regimes throughout world history. We suffer people to commit
despicable acts of private violence and we welcome - some of us revere - a regime
that destroys popular government for the sake of perverted, Orwellian notions of
"liberty." After a twentieth century that saw some of the worst barbarisms and
atrocities ever committed by humankind, at a time when humankind supposedly
had progressed to more enlightened states, we still have not learned. The lesson
of the Holocaust - "Never Forget" - is lost. We fail to recognize the amazing
capacity of human beings to commit unthinkable, barbaric evil, and of others to
tolerate it. We remember and are aghast at the atrocities of others, committed
in the past, or in distant lands today. But we do not even recognize the similar
atrocities that we ourselves commit, and tolerate, today."
The Constitution and the Courts
The following quote from Andrew Jackson is a concise statement of
Constitutional principal that has been ignored, or forgotten for many
decades. The prevailing myth seems to be that the Constitution is what
the federal judiciary says it is, regardless of the extent of deviation from
text or intent, and that all others who are bound by an oath of Office in
Article 6, Clause 3 are forbidden to act on their understanding of the text
they are sworn to uphold.
Article 6, Clause 3 contains no Oath or Affirmation to support any federal
judicial opinion. The plain text of the Constitution reveals separation of
powers, checks & balances and coordinate functioning of three branches
that are not coequal in power. Power of impeachment, funding, regulation
of lower federal court jurisdiction and the U.S. Supreme appelate
jurisdiction resides in Congress. The President has the power of
enforcement and isn't Constitutionally, legally, or ethically required to blindly
enforce blatantly unconstitutional opinions. The Supreme Court has only
the power of opinion, which has become far more biased in its increasing
disregard of plain text than the mainstream media has been in its
disregard of plain fact.
 If the opinion of the Supreme Court covered the whole
ground of this act, it ought not to control the coordinate
authorities of this Government. The Congress, the Executive,
and the Court must each for itself be guided by its own
opinion of the Constitution. Each public officer who takes
an oath to support the Constitution swears that he will
support it as he understands it, and not as it is understood
by others. 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 be 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.
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Congressman Ron Paul
October 4, 2004
(Emphasis added)
Last week’s debate over the constitutional marriage amendment brought even greater attention to the issue of activist judges. From gay marriage to Boy Scouts to frivolous lawsuits to the Pledge of Allegiance, Americans have grown increasingly distrustful and suspicious of our federal courts- and rightfully so. Never in our history have unaccountable federal judges wielded more power over our lives.
Judicial activism, the practice of judges ignoring the law and deciding cases based on their personal political views, has intensified in the decades since Roe v. Wade. This practice is now standard for many federal judges. They dismiss the doctrine of strict construction as hopelessly outdated, instead treating the Constitution as fluid and malleable to create a desired outcome in any given case. For judges who see themselves as social activists, their vision of justice is more important than the letter of the laws they are sworn to interpret and uphold. With the federal judiciary focused more on promoting a social agenda than upholding the rule of law, Americans find themselves increasingly governed by men they did not elect and cannot remove from office.
But what is to be done? Since many citizens lack basic knowledge of our Constitution and federalist system, they are easily manipulated by media and academic elites who tell them that judges are the absolute and final arbiters of US law. But the Supreme Court is not supreme over the other branches of government; it is supreme only over lower federal courts. If Americans wish to be free of judicial tyranny, they must at least develop basic knowledge of the judicial role in our republican government. The present state of affairs is a direct result of our collective ignorance.
The ultimate solution to the problem of unbridled judicial activism at the federal level is clear: Congress must reassert its constitutional authority to define and restrict the jurisdiction of federal courts. This power is plainly granted in Article III, and no constitutional amendments are required. On the contrary, any constitutional amendment addressing judicial activism would only grant legitimacy to the dangerous idea that social issues are federal matters. Remember, when social issues are federalized, conservatives always lose. Giving more authority over social matters to any branch of the federal government is a mistake, because a centralized government is unlikely to reflect local sentiment for long. If anything, the marriage amendment would have given the secular left an excuse to impose gay marriage on all of us in future years, as the issue would have been irrefutably federalized.
Congressional cowardice enables judicial activism. Just as Congress ceded far too much legislative authority to presidents throughout the 20th century, it similarly has allowed federal judges to operate wildly beyond their constitutional role. In fact, many current members of Congress apparently accept the false notion that federal court judgments are superior to congressional statutes. Unless and until Congress asserts itself by limiting federal court jurisdiction, judges will continue to act as de facto lawmakers.
The political left increasingly uses the federal judiciary to do in court what it cannot do at the ballot box: advance an activist, secular, multicultural political agenda of which most Americans disapprove. As a society we should reconsider the wisdom of lifetime tenure for federal judges, and pay closer attention to the judicial nomination procedure. It’s time for the executive and legislative branches to show some backbone, appoint judges who follow the Constitution, and remove those who do not. It’s also time for Congress to start establishing clear limits on federal judicial power.
 See also:
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The three branches of federal government are coordinate, not coequal in power.
The U.S. Constitution confers no monopoly of interpretation to the U.S. Supreme
Court. Checks and balances exist, but Congress can remove a President and any
federal judge for any reason THEY THE SEE FIT under high crimes and misdemeanors,
or in the case of federal judges - bad behavior. Congress is accountable only to the people,
not the President or Judiciary. While this may be SHOCKING to many---Let the links be
submitted to a candid world:
"On every question of construction [of the Constitution] let us carry ourselves back
to the time when the Constitution was adopted, recollect the spirit manifested in the
debates, and instead of trying what meaning may be squeezed out of the text, or
intended against it, conform to the probable one in which it was passed."-
Thomas Jefferson (1743-1826), letter to Judge William Johnson,
(from Monticello, June 12, 1823) FOUNDER'S LIBRARY
"The Constitution was written to be understood by the voters; its words and phrases
were used in their normal and ordinary, as distinguished from technical meaning;
where the intention is clear, there is no room for construction, and no excuse for
interpolation or addition." - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v.
Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet
10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662;
Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The
Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451;
Cooley's Constitutional Limitations, 2nd ed., p. 61, 70.
The judiciary, on the contrary, has no influence over either the sword or the purse;
no direction either of the strength or of the wealth of the society; and can take no
active resolution whatever. It may truly be said to have neither FORCE nor WILL,
but merely judgment; and must ultimately depend upon the aid of the executive arm
even for the efficacy of its judgments.
It proves incontestably, that the judiciary is beyond comparison the weakest of the
three departments of power 1 The celebrated Montesquieu, speaking of them, says:
"Of the three powers above mentioned, the judiciary is next to nothing.''
"Montesquieu: The Spirit of Laws.'' vol. i., page 186. And it proves, in the last place,
... that as, from the natural feebleness of the judiciary, it is in continual jeopardy of
being overpowered, awed, or influenced by its co-ordinate branches....
But it is not possible to give to each department an equal power of self-defense.
In republican government, the legislative authority necessarily predominates
"In the first place, there is not a syllable in the plan under consideration which directly
empowers the national courts to construe the laws according to the spirit of the
Constitution, or which gives them any greater latitude in this respect than may be
claimed by the courts of every State."
"It may in the last place be observed that the supposed danger of judiciary
encroachments on the legislative authority which has been upon many occasions
reiterated is in reality a phantom. Particular misconstructions and contraventions of
the will of the legislature may now and then happen; but they can never be so
extensive as to amount to an inconvenience, or in any sensible degree to affect the
order of the political system. This may be inferred with certainty from the general
nature of the judicial power, from the objects to which it relates, from the manner in
which it is exercised, from its comparative weakness, and from its total incapacity to
support its usurpations by force. And the inference is greatly fortified by the
consideration of the important constitutional check which the power of instituting
impeachments in one part of the legislative body, and of determining upon them in
the other, would give to that body upon the members of the judicial department.
This is alone a complete security. There never can be danger that the judges, by a
series of deliberate usurpations on the authority of the legislature, would hazard the
united resentment of the body intrusted with it, while this body was possessed of the
means of punishing their presumption by degrading them from their stations."
While he was President, he asserted his position by his
action (or inaction) rather than by theories, but after he
had left office he made clear in letters and otherwise his
position. For example, he wrote in a letter in 1820: "You
[William C. Jarvis] seem ...to consider the judges as the
ultimate arbiters of all constitutional questions, a very
dangerous doctrine indeed and one which would place
us under the despotism of an oligarchy . . . 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."
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Justice Curtis's warning is as timely today as it was 135 years ago:
"[W]hen a strict interpretation of the Constitution, according to the fixed rules which
govern the interpretation of laws, is abandoned, and the theoretical opinions of
individuals are allowed to control its meaning, we have no longer a Constitution; we
are under the government of individual men, who for the time being have power to
declare what the Constitution is, according to their own views of what it ought to mean."
Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).
The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of
us unelected, life tenured judges--leading a Volk who will be "tested by following,"
and whose very "belief in themselves" is mystically bound up in their "understanding"
of a Court that "speak[s] before all others for their constitutional ideals"--with the
somewhat more modest role envisioned for these lawyers by the Founders.
"The judiciary . . . has . . . no direction either of the strength or of the wealth
of the society, and can take no active resolution whatever. It may truly be said
to have neither Force nor Will but merely judgment . . . ."
The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982).
Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on
controversial matters, no shadow of change or hint of alteration ("There is a limit to
the amount of error that can plausibly be imputed to prior courts," ante, at 24), with
the more democratic views of a more humble man:
"[T]he candid citizen must confess that if the policy of the Government upon
vital questions affecting the whole people is to be irrevocably fixed by
decisions of the Supreme Court, . . . the people will have ceased to be their
own rulers, having to that extent practically resigned their Government into
the hands of that eminent tribunal." A. Lincoln, First Inaugural Address
(Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the
United States, S. Doc. No. 101-10, p. 139 (1989).
"Mr. Chairman, as a nonlawyer, I count it a high privilege to serve as a Member of
this Subcommittee. However, as a student of the United States Constitution, I would
not be truthful if I said that I have always understood as perceived by this nonlawyer
to be a disconnect between the plain wording and construction of the Constitution
and the opinions handed down by the Federal judiciary as, quote, "''constitutional,''"
end quote.
But this perceived disconnect was explained to me with such clarity by, and rightfully
so, a lawyer when I read the testimony of Dr. Leo Graglia, before the House of
Representatives Judiciary Committee's Subcommittee on Courts and Intellectual
Property, of May 15, 1997. Dr. Graglia, who is the A. Dalton Cross Professor of Law
at the University of Texas law school, profoundly observed that, quote, "''the first and
most important thing to know about constitutional law is that it has virtually nothing to
do with the Constitution,''" end quote. At that point, the scales fell from my eyes, and
I realized that I cannot confuse what is taught in our Nation's law schools and what
is expounded by so-called constitutional scholars on the 24-hour news talk shows with
the work of folks like Madison, Hamilton, Jay, and Washington, and others at Philadelphia
in 1787, or for that matter the first Congress in 1789 or the 39th Congress in 1866."
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I say that we must not interfere with the institution of slavery in the States where it exists, because the Constitution forbids it, and the general welfare does not require us to do so. We must not withhold an efficient fugitive slave law because the Constitution requires us, as I understand it, not to withhold such a law. But we must prevent the out-spreading of the institution, because neither the Constitution nor general welfare requires us to extend it. We must prevent the revival of the African slave-trade, and the enacting by Congress of a territorial slave code. We must prevent each of these things being done by either congresses or courts. The people of these United States are the rightful masters of both congresses and courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.
Abraham Lincoln: 'Speech at Columbus, Ohio, September 16, 1859' in 'The Complete Works of Abraham Lincoln, v. 5' (New York: Francis D. Tandy Company, 1894 )
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"Over eleven years ago, then-Attorney General Meese got a lot of attention for saying,
in an address at Tulane University, that "''the Constitution cannot be reduced to
constitutional law,''" and that in its notorious dicta in Cooper v. Aaron in 1958,
(see footnote 141) the Supreme Court had misread both the Constitution and Marbury
v. Madison in describing its own authority to determine the content of the supreme
law of the land.(see footnote 142) He was much excoriated on op-ed pages and by
many legal scholars, but he was absolutely right.
It is time to translate words into action, to move from rhetoric to a more concrete
approach. If we are serious about the proposition that all the branches of the national
government share a coordinate authority to interpret the Constitution, with none of
them commanding the obedience of the others as to every sort of constitutional question,
then it is past time the Congress began to assert its co-equal authority in practical
ways. This reassertion of congressional responsibility can begin with the breaking
of some comfortable habits." Congress, the Court, and the Constitution
"Here are three of our nation's leading constitutional theorists unflinchingly declaring:
(1) that the main job of constitutional scholars today is to justify judicial activism
(not to understand the Constitution); (2) that in our system, the word ''Constitution''
really means ''judicial role''; and (3) that constitutionalism is ''"anticonstitutional,''" or
''"self-contradictory!''" This is astounding. Constitutionalism may be a contradiction
under any regime in which judicial review is "''all or nothing;''" but judicial review is
'"'all or nothing'"' only under a theory of judicial supremacy. So if judicial supremacy
is incompatible with constitutionalism, shouldn't we just get rid of judicial supremacy,
and keep the Constitution? My answer is an unequivocal affirmative; and I would add
that American constitutional history supports this answer. Let's consider this history
While it is "''emphatically the province and duty of the judicial department to say what
the law is,'"' certainly the same can be said of Congress and the President. All three
branches say what the law is. The Court states what the law is on the day a decision
comes down; the law may change later by actions taken by the elected branches.
I will give a number of prominent examples of this institutional interplay.
In 1803, Marshall did not think he was powerful enough to give orders to Congress
and the President. After the elections of 1800, with the Jeffersonians in control of
Congress and the Presidency, the Federalist Court was in no position to dictate to
the other branches. Marshall realized that he could not uphold the constitutionality of
Section 13 of the Judiciary Act of 1789 and direct Secretary of State James Madison
to deliver the commissions to the disappointed would-be judges. President Thomas
Jefferson and Madison would have ignored such an order. There is no reason to
think that Marshall believed that the Court was supreme on matters of constitutional
interpretation.
This conclusion is borne out by the impeachment hearings of Judge Pickering and
Justice Chase. Marbury was decided on February 24, 1803. The House impeached
Pickering on March 2, 1803 and the Senate convicted him on March 12, 1804. As
soon as the House impeached Pickering, it turned its guns on Chase. If that move
succeeded, Marshall had reason to believe he was next in line. With these threats
pressing upon the Court, Marshall wrote to Chase on January 23, 1804, suggesting
that Members of Congress did not have to impeach judges because they objected to
their judicial opinions. Instead, Congress could simply review and reverse objectionable
decisions through the regular legislative process. Here is Marshall's language in the
letter to Chase:
I think the modern doctrine of impeachment should yield to an appellate
jurisdiction in the legislature. A reversal of those legal opinions deemed
unsound by the legislature would certainly better comport with the mildness of
our character than [would] a removal of the Judge who has rendered them
unknowing of his fault.
The meaning of Marbury is placed in proper perspective when we recall that Marshall
never again struck down a congressional statute during his long tenure on the Bench,
which lasted from 1801 to 1835. Instead, he played a consistently supportive role in
upholding congressional interpretations of the Constitution. In the years following
Marbury, Marshall upheld the power of Congress to exercise the commerce power,
to create a U.S. Bank