If the American People [and American lawyers] had been
properly educated, they would know that our federal
Constitution created a federal government of enumerated
powers only; and that most of the powers delegated to
Congress over the Country at Large are listed at Art. I,
§8, clauses 1-16, US Constitution.
"Abortion" is not listed among the enumerated powers.
Therefore, Congress has no power to make any laws about
abortion for the Country at Large.1
And since "abortion" isn't "expressly contained" in the
Constitution, it doesn't "arise under" the Constitution;
and since state laws restricting abortion don't fit
within any of the other categories of cases the federal
courts are authorized by Art. III, §2, cl. 1 to hear,
the federal courts also have no power over this issue.
So from the beginning of our Constitutional Republic until
1973, everyone understood that
abortion is a State
matter. Accordingly, many State Legislatures enacted
statutes restricting abortion within their borders.
But in 1973, the US Supreme Court issued its opinion in
Roe v. Wade and made the
absurd claim that Section 1 of the 14th Amendment contains
a "right" to abortion. In
Why Supreme Court opinions are
not the 'Law of the Land,' and how to put federal judges
in their place, I showed why the Supreme Court's
opinion in
Roe is unconstitutional.
But Americans have long been conditioned to believe
that the Constitution means whatever the Supreme Court
says it means.2
Accordingly, for close to 50 years, American lawyers and
federal judges have mindlessly chanted the absurd
refrain that "Roe v. Wade is the Law of the
Land"; State governments slavishly submitted; and 60 million babies died.
So who has the lawful authority to stop abortion?
1. Congress has constitutional
authority to ban abortion in federal enclaves and
military hospitals
Over the federal enclaves, Congress has constitutional
authority to ban abortion: Pursuant to Article I, §8,
next to last clause, Congress is granted "exclusive
Legislation" over the District of Columbia, military
bases, dock-Yards, and other places purchased with the
consent of the State Legislatures (to carry out the
enumerated powers).3
Article I, §8, cl.14 grants to Congress the power to
make Rules for the government and regulation of the
Military Forces. Accordingly, for the specific
geographical areas described at Article I, §8, next to
last clause, and in US military hospitals everywhere,
Congress has the power to make laws banning abortion.
2. But federal courts have no
constitutional authority over abortion
Article III, §2, cl. 1 lists the ten categories of cases
federal courts have authority to hear. They may hear
only
cases:
- "Arising under" the Constitution, or the Laws of the
United States, or Treaties made under the Authority of
the United States ["federal question" jurisdiction];
- Affecting Ambassadors, other public Ministers &
Consuls; cases of admiralty & maritime
Jurisdiction; or cases in which the U.S. is a Party
["status of the parties" jurisdiction];
- Between two or more States; between a State &
Citizens of another State; between Citizens of
different States; between Citizens of the same State
claiming Lands under Grants of different States; and
between a State (or Citizens thereof) & foreign
States, Citizens or Subjects ["diversity"
jurisdiction].4
These are the only cases federal courts have
authority to hear. Alexander Hamilton wrote in
Federalist No. 83 (8th para):
"...the judicial authority of the federal judicatures is
declared by the Constitution to comprehend certain cases
particularly specified. The expression of those
cases marks the precise limits beyond which the
federal courts cannot extend their jurisdiction,
because the objects of their cognizance being
enumerated, the specification would be nugatory if it
did not exclude all ideas of more extensive authority."
[boldface added]
Obviously, State laws restricting abortion don't fall
within "status of the parties" or "diversity"
jurisdiction; and federal courts haven't claimed
jurisdiction on those grounds. Instead, they have asserted
that abortion cases "arise under" the US Constitution!
But in
Federalist No. 80 (2nd para),
Hamilton states that
cases "arising under the
Constitution" concern
"...the execution of the provisions expressly
contained in the articles of Union [the US
Constitution]..." 5
[boldface added]
Obviously, "abortion" is not "expressly contained" in the
Constitution. So it doesn't "arise under" the
Constitution. In
Roe v. Wade, the Supreme Court
had to
redefine the word
,
"liberty," which appears in §1 of the 14th Amendment, in
order to claim that "abortion" "arises under" the
Constitution.
Section 1 of the 14th Amendment says:
"All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction
the equal protection of the laws." [boldface added] 6
Do you see where it says that pregnant women
have the "right" to abortion? It isn't there! So
this is what the Supreme Court did to legalize killing
babies: They said "liberty" means "privacy" and "privacy"
means state laws banning abortion are unconstitutional.
And
American lawyers and judges have slavishly gone along
with this evil absurdity ever since!
3. States must reclaim their
traditionally recognized reserved power
to restrict abortion!
Since "abortion" is a power reserved by the States or the
People, State Legislatures should reenact State Statutes
restricting abortion.
When a lawsuit is filed in Federal District Court alleging
that the State Statute violates the US Constitution, the
State Attorney General should file a motion in the Court
to dismiss for lack of subject matter jurisdiction. He
should point out that the Court has no constitutional
authority to hear the case;
that Roe v.
Wade is void for
lack of subject matter jurisdiction; that "abortion"
is one of the many powers reserved by the States; and that
the State Legislature properly exercised its retained
sovereign power when it re-enacted the Statue restricting
abortion.
The State Attorney General should also advise the Court
that if the Court denies the Motion to Dismiss, the State
will not participate in the litigation and will not submit
to any pretended Orders or Judgments issued by the Court.
Now! Here is an interesting fact which everyone would
already know if they had had a proper education in
civics: Federal courts have no power to enforce
their own Judgments and Orders. They must depend
on the Executive Branch of the federal government to
enforce their Judgments and Orders.7
Since President Trump has proclaimed his opposition to abortion,
who believes that he would send in the National Guard to
force the State to allow physicians to kill more babies
within the State? Please understand: An opinion
or ruling from a federal court means nothing
unless the Executive Branch chooses to enforce it.8
THIS IS THE EXECUTIVE BRANCH'S "CHECK" ON THE JUDICIAL
BRANCH! If the President, in the exercise of his
independent judgment, thinks that an Order or Judgment
of a federal court is unconstitutional, it is his duty
imposed by his Oath of Office 9
to refuse to enforce it.
4. The modern day approach to dealing with absurd
Supreme Court Opinions
But most pro-life lawyers will tell you we should proceed
as follows: That we need to get a number of States to pass
"heartbeat laws." Pro-abortion forces will then file
lawsuits in federal district courts alleging that the
heartbeat laws violate
Roe v. Wade and are
"unconstitutional." Most States will lose in the federal
district courts. But they can appeal to one of the 13 US
Circuit Courts of Appeal. Most of the States will also
lose in the Circuit Court. But if just one Circuit Court
rules in favor of the heartbeat law, then there will be
"conflict" among the Circuits and the US Supreme Court is
likely to hear the issue. This will give the US Supreme
Court the opportunity [years from now] to revisit
Roe
v. Wade, and they
might overrule it!
But I suggest, dear Reader, that we must purge our
thinking of the assumption that we can't have a moral and
constitutional government unless Five Judges on the
Supreme Court say we can have it. Since it is clear that
federal courts have no constitutional authority over
abortion, why do we go along with the pretense that they
do? Why not just man-up and tell them,
"You have no
jurisdiction over this issue"?
Our Framers would be proud of you.
Endnotes:
1
Accordingly, the federal Heartbeat Bill and the
Pain-Capable Unborn Child Protection Act, to the extent
they purport to apply outside federal enclaves and
military hospitals, are unconstitutional as outside the
scope of powers delegated to Congress over the Country
at Large.
2 The Supreme
Court was created by Art. III, §1, US
Constitution, and is completely subject to its terms. As
a mere "creature," it may not re-write the document
under which it holds its existence.
3 In Federalist No. 43 at 2.,
James Madison explains why Congress must have complete
lawmaking authority over the District of Columbia and
the federal enclaves.
4 The 11th
Amendment reduced the jurisdiction of federal courts by
taking from them the power to hear cases filed by a
Citizen of one State against another State.
5 Federalist No. 80 (3rd
& 13th paras) illustrates what "arising under the
Constitution" means: Hamilton points to the restrictions
on the power of the States listed at Art. I, §10 and
shows that if a State exercises any of those powers, and
the fed. gov't sues the State, the federal courts have
authority to hear the case.
6"Privileges and
immunities" and "due process" are ancient Principles of
English Jurisprudence well-known to earlier generations
of American lawyers. "Equal protection" within §1 of the
14th Amd't means that with respect to the rights
recognized by these ancient Principles, States were now
required to treat black people the same as white people.
See Raoul Berger, Government by Judiciary The
Transformation of the Fourteenth Amendment.
7 In Federalist No. 78 (6th
para), Hamilton shows why federal courts have no power
to enforce their orders and judgments – they must rely
on the Executive Branch to enforce them:
"... the judiciary... will always be the least dangerous
to the political rights of the Constitution; because it
will be least in a capacity to annoy or injure them. 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 of the executive arm even for the efficacy of its
judgments." [caps are Hamilton's; boldface added]
8 During the
Eisenhower administration, a federal court ordered the
State of Arkansas to desegregate their public schools. But
the Governor of Arkansas refused to comply with the
federal court orders. So President Eisenhower sent in
the National Guard to force Arkansas to admit black
students to a public school. See this archived article from
the New York Times.
Here, Eisenhower chose to enforce the Court's Order. But
if he had decided that he would NOT enforce it, the
schools would have remained segregated.
Federal courts
are dependent on the Executive Branch of the fed. gov't
to enforce their Orders!
This is what
Hamilton is talking about in Federalist No. 78.
9 The
President's Oath is to "...preserve, protect and defend
the Constitution of the United States" (Art. II, §1,
last clause). It is not to obey the Judicial Branch of
the fed. gov't.