Though some in the pro-life movement strenuously disagree, I believe we should all applaud the wisdom and courage the governor and legislators in South Dakota have shown with the passage into state law of a near total ban on abortions.
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Their calculating critics in the movement discouraged and opposed their action with the argument that the time is not ripe because the law will only be struck down in the federal courts. They believe this will contribute to the perception that abortion is "the law of the land," and therefore risks demoralizing pro-life efforts.
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I grant you, they are probably right about the time-serving politicians who mouth support for the pro-life position in order to win a few votes. People like that will take any excuse they can find to avoid acting on their feigned convictions. On the other hand, the battle that must now ensue over the South Dakota law, both in the law courts and the court of public discussion, is an opportunity to revitalize and spread a clear understanding of the fundamental issues involved in the fight to defend innocent life in the womb.
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Given the passage of time, we cannot take it for granted that new generations grasp these issues. Indeed the fact that some people believe that a court opinion automatically represents "the law of the land" clearly shows that they have altogether lost sight of one of them.
As a free people, we Americans enjoy constitutional self-government. Constitutions ratified by the people specify the terms of all lawmaking power in our republic – power that ultimately derives from the constitutionally determined consent of the people. The U.S. Constitution and the constitutions of each and every one of our state governments vest that power in legislatures composed of representatives elected by the people. Our courts have no lawmaking power except for administrative purposes by explicit grant of the legislative branch. The argument for judicial review, which some say gives the courts final say over constitutional interpretation, does no such thing. Consider for example the formulation made by Alexander Hamilton when first presenting the argument in the Federalist Papers (No. 78):
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Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power ... The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law.
It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred ... the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents [in the legislature].
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This argument rightly ascertains the obligation of the judges, sworn as they are to uphold the Constitution, to respect its terms when deciding a particular case. But before the advocates of judicial supremacy claim confirmation for their view, they should read on:
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Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.
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The argument for judicial review thus clearly establishes the obligation of the judges to set aside any given statute and follow the Constitution when the two are at odds. Does this give the judges' opinions the force of law? Not at all:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be the least in a capacity to annoy or injure them.
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The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. 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 to the executive arm even for the efficacy of its judgment.
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Given the separation of powers, judicial decisions have no force of law unless the executive, who alone controls that force, concurs in the decision. The notion that the executive is simply obliged to do as the court decides destroys the separation of powers, since it makes the executive a mere agent or instrument of the judiciary.
But if the executive is not automatically governed by the decisions of the judiciary, what limits its power? Obviously, the same fundamental law that the judges must respect – the Constitution. The executive, like the judge, is bound by oath to respect the Constitution. The executive cannot simply defer to the judiciary, any more than the judiciary can simply defer to the legislature, because the Constitution is superior to them both.
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Because he is bound in conscience to respect the Constitution, his oath forbids him to follow court decisions that he conscientiously believes to be unconstitutional. The same reasoning applies to the legislative, provided a sufficient majority exists to register its disagreement by constitutional means. (Thus, if a sufficient majority exists, the legislature can withhold funding from a court it believes to be acting unconstitutionally; or it can impeach and remove from the bench judges who persist in unconstitutional behavior.)
Because our Constitution provides for a federal system of government, the state governments retain powers not delegated to the federal government, as the Tenth Amendment to the U.S. Constitution makes clear. By the terms of that amendment, the states and the people themselves retain the right to exercise these residual powers, which means, of course, that they have the obligation to stand firm upon their right when they conscientiously believe it is being encroached upon.
The governors and legislatures of our states are also bound by oath to respect the U.S. Constitution, as well as the constitution of their respective states. Just as the separation of powers implies that the judiciary does not automatically command the other branches of government, so the federal nature of our republic implies that the federal government does not automatically command the states. All must make a conscientious effort to respect the Constitution, and all have the obligation to act as they conscientiously believe the Constitution requires.
No, despite the instant and alarmed protestations of the judicial supremacists, this does not imply anarchy or constant civil turmoil. It does imply constant vigilance and responsibility on the part of every government official and representative who wields a share of the sovereign powers of government. And it implies that in the event of a profound and persistent disagreement among them, the people must be consulted, as the Constitution provides, to ascertain their will. The power of the people, as Hamilton noted, is superior to them all. It is the people – not any branch or level of government – that has the final say.
This whole argument reminds us of the reason why court opinions must be accompanied by a clear exposition of the reasoning that supports them. The courts are obliged to demonstrate that their decisions have a clear legal or constitutional basis. They are not supposed to be governed by their arbitrary whims and preferences, and in every case they must prove their respect for this limitation. They submit their reasoning to the scrutiny of the other branches, and the people at large because all have a responsibility to pass judgment on its credibility.
Because of the pernicious influence of the judicial supremacists, the judges have been increasingly careless about this since the mid-20th century. Roe v. Wade was a clear and devastating example of this carelessness. Much of the text is devoted to an historical and philosophic review more appropriate to the legislature than the courtroom. When he first gets around to the nub of the constitutional issue, Mr. Justice Blackmun accurately assesses the fundamental issue:
The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on re-argument. On the other hand, the appellee conceded on re-argument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
Justice Blackmun knows, of course, that whatever the parties argue, and whatever previous cases may or may not have recognized, the court's proper and definitive guide is the Constitution. So in the following paragraph, he turns to the Constitution, declaring that "The Constitution does not define 'person' in so many words." He details uses of the word in various provisions of the Constitution and concludes that "in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application."
By this show of constitutional review, we are supposed to be satisfied that no guidance can be found in the text itself. Yet he conveniently neglects one part of the Constitution long acknowledged to provide guidance in just such circumstances, to wit, the Preamble. There the people declare their overall objectives in establishing the Constitution. Since, as Hamilton noted, the will of the people is the ultimate authority even for the Constitution, this indication of their will can never properly be overlooked. In cases having to do with executive control of the military, federal interest in education and welfare issues, and so forth, the court has referred to and relied upon the Preamble in just this way.
When we turn to the Preamble for guidance on the question Blackmun acknowledges to be the crux of the Roe decision, we find that the final and ultimate objective of the people in establishing the Constitution is "to secure the blessings of liberty to ourselves and our posterity." The word "posterity" in both general and legal parlance, includes reference to those who will come after us, those who have not yet been conceived, much less born.
We the people acknowledge our obligation to future generations, and place their claim to the blessings of liberty on an equal footing with our own. Thus the language of the Constitution provides clear and unequivocal guidance on the very point Blackmun identifies as the one by which the appellant's (Roe) case is overturned. I imagine a crafty lawyer could try to muddy these clear waters, but thanks to the court's dereliction, this constitutional issue was neither raised nor addressed.
There are many reasons to believe that the courts will be tempted contemptuously to dismiss this preambular argument, not because it has no force, but because its force invalidates the larger project of judicial usurpation of which Roe is only a part. Though every other word of the Constitution is to be taken seriously, "the blessings of liberty" is a mere rhetorical flourish.
They want us to swallow this canard because any serious discussion of the phrase must focus attention on the implications of the Constitution's use of a word that has no serious significance without the acknowledgement of a divine being. There can be no doubt that, with the Founding generation, it carried this significance almost exclusively, and that it still does so with most of the American people. This means that in its very statement of purpose, the Constitution acknowledges the standard of God's will, and requires an interpretation that prefers, in our use of liberty, results that secure His favor.
Yet though the courts, in order to continue their abuses, may ignore the clearly expressed and fundamental expression of the will of the people, all others who are oath bound to uphold the Constitution are conscientiously obliged to respect it. The governor and Legislature of South Dakota have acted courageously on this obligation. Even if the courts decide against them, we the people should remember that the final judgment is our responsibility.
