The Legal Principles of the Founding Fathers and the Supreme Court

REV. EDWARD J. MELVIN, C.M.

The Founders placed belief in God and acceptance of natural moral law (derived from reason and corroborated in Judeo-Christian revelation) as the foundation of the American system.

“We, the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic
Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”


Preamble to Constitution
 

CONTENTS

I. The Tragedy of the Bicentennial Celebration

II. The Declaration of Independence:

Foundation of the American System
III Negating the Founding Fathers by Constitutional Interpretation

People's loyalty to Principles of Declaration
Failuter of American Leadership Surrender of Legal Profession Failure of Supreme Court The Blakmun Decision, Jan. 22, 1973 The Blackmun Decisions, July 1, 1976   I THE TRAGEDY OF THE BICENTENNIAL CELEBRATION

A great tragedy happened for the American people in the way our 200th anniversary was celebrated. July 4, 1976, had indeed the joy of a birthday party, but smothered by the tinsel and din was the significance of the day. Scarcely mentioned by government leaders, almost unnoticed by the media, were the self-evident truths for which the men who signed the Declaration of Independence on July 4, 1776, risked their lives. These principles the signers considered essential for the nation they declared independent; in the words of John Hancock, President of Congress, they were to be “the ground and foundation of a future government.” [1] That there are inalienable human rights which come from God and that government which gets its powers from the consent of the governed must protect these rights are truths deep in the soul of the American people — even though unvoiced by national leaders during the bicentennial celebration which ought to have been built around them.

Of more tragic consequence is the fact that these truths have been ignored by the men who interpret our laws. The most disastrous examples of this are two sets of pro-abortion decisions handed down by the Supreme Court in the past few years, both written by Justice Harry A. Blackmun. On Jan. 22, 1973 the Court, by striking down the anti-abortion laws in all 50 states and decreeing unborn human beings to be legal non-persons, stripped the unborn of the primordial right of the Declaration of Independence, the right to life. On July 2, 1976, after 3,000,000 unborn human lives had been sacrificed on the altar of the legalized secularism which denied that the inalienable right to life comes from the Creator, the Court reiterated its deadly stand and went further. It destroyed a father's right to protect his unborn child by declaring a husband's permission is not needed for his wife's abortion. In the same ruling the Court decreed that parental advice or consent is not required to abort an unmarried pregnant daughter of minor age. The attack on the inalienable right to life now became an attack on the right of the American family to exist as a unit. The proof that these Supreme Court decisions contradict the principles of the men who gave us the Constitution and its Bill of Rights is found in the history of the founding of American governments.

State governments and state constitutions were established between 1776 and 1787, built deliberately upon or recognizing the principles of the Declaration of Independence. The new state constitutions had bills of rights which were parented by the Virginia Declaration of Rights, an even more complete proclamation of the principles enunciated in the Declaration of Independence. The Articles of Confederation established a quasi-national government in 1781, which served the nation until the Constitution was adopted in 1787. It was so lacking in the essentials of true government that James Madison wrote “it is in fact nothing more than a treaty of amity and of alliance between independent and sovereign states.” [2]

The Constitution of 1787 established the true new government of the United States, the government whose “ground and foundation” in the prophetic words of Hancock was the Declaration of Independence. John Quincy Adams would later sum it up by saying the Declaration and the Constitution were parts of one consistent whole and founded on one and the same theory of government. Actually the people themselves forged the link between the Declaration and Constitution. When the Constitutional Fathers had failed to include a bill of rights the opposition was so widespread that the Constitution in three of the most important states (Massachusetts, New York and Virginia) was ratified on the implicit condition that a bill of rights be added. Under the leadership of James Madison the first ten Amendments, the Bill of Rights, were added to the Constitution, the fruit of popular pressure that the rights recognized as natural and inalienable in the Declaration of Independence be codified in such legal specifics that they would be protected in practice.

The philosophy was proclaimed in the Declaration, how the rights were to be exercised in the Constitution. One was the “ground and foundation,” the other the civil structure built thereon. The Declaration had stated “that all men are endowed with certain inalienable rights, that among these are life...” The Fifth Amendment stated “nor shall any person...be deprived of life...without due process of law.” The Supreme Court in the Blackmun decisions quoted sections of the Constitution as drafted by the Fathers which used the word “person” but never investigated the common or legal meaning of this word in its use by the founding generation. By an improper use of semantics the Court reached the conclusion that unborn offspring of human beings were not “persons” under the Fourteenth Amendment (which applied Fifth Amendment protection of “persons” to the states) and not to be given Constitutional due process protection in their right to life.(2a) The step by step progression away from the principles of the men who gave the nation its Constitution to the point of legalizing the destruction of the most fundamental of human rights, life itself, is the subject of this essay.

The Supreme Court's continued interpretation of the Constitution as if its foundation does not exist is the tragedy of our time. If Americans do not have right inalienably connected with our common humanity, but possess only the rights a Supreme Court majority decrees to be constitutional, no traditional American right is secure. If the Court can deny the right to life to any innocent human being within its jurisdiction, by inference, its power is as essentially totalitarian as that of a Communist or Nazi dictatorship. All human rights depend on the recognition of the primordial right to life. To have legalized the killing of 3,000,000 innocent unborn is by the principles of the men who gave us the American constitutional system as morally and legally indefensible as the killing of 3,000,000 victims in Nazi gas ovens. How many million victims will there be before the American slaughter stops?

If this generation wishes to recapture for posterity the American founding ideal that human life is sacred and that human beings have rights simply because they are human, it must seek to understand the principles of the Declaration of Independence and with that understanding enforce those principles as the guiding criteria for Constitutional Interpretation.


II THE DECLARATION OF INDEPENDENCE: FOUNDATION OF AMERICAN SYSTEM

The Declaration of Independence states:

When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness...And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

The Founders were dealing with truths they held to be self-evident, that is truths which to reasonable men carried within themselves proof of their own validity. One does not have to explain to ordinary human beings why two plus two equals four, why every effect must have a cause, why good must be done and evil avoided. These are truths, not opinions. In modern terms, they admit of no legitimate pluralism. Nobody would do business with a person who doubted sum of two plus two, one would not entrust his life to a doctor who did not believe that every effect has a cause. Even barbarians knew that good must be done, evil avoided.

In the Founding Fathers listing the first of the self-evident Declaration truths was that all men are by nature equal: therefore the rights which belonged to human beings because they possess the same human nature (animals would not have such rights) belonged just as much to Americans as to the Englishmen. They would wage war, but they were beyond discussion concerning their violated rights. The whole world would recognize their evidently just claims even if Great Britain would not.

The principle of the existence of self-evident truths is very important because “pluralism” is so accepted in society today that even the truths upon which civilized society must be built are thrown open to challenge. To insist that government must defend the rights and human dignity upon which civilization depends is often disputed by the statement “you have no right to impose your moral code upon me.” But such a statement was absurd to the Founding Fathers. These truths were established in nature by the Creator; He has imposed them, not the one who insists they exist.

The Founding Fathers recognized these truths not open to pluralistic challenge as the ground for American civilization and placed them as the foundation of the nation's politico-legal system. There was an order, a precedence in their thinking; some truths were more fundamental than others. Four truths basic for civilized living were proclaimed in the Declaration of Independence. (The truths italicized in the quotation from the Declaration on previous page.) There is a God, [3] the bed-rock truth upon which they built; He has established a natural-moral law to guide men antecedent to all civil law; from this natural law comes the inalienable right of each human being; and governments are established by the consent of the people to protect the inalienable right. They also specified that among the rights belonging to each human being are the rights to life, liberty and the pursuit of happiness; hence the object of government is to protect the rights to life and liberty and further the happiness of the people.

In the effort to understand the Founders' conviction that upon the four truths listed by the Declaration as basic the nation was to be built, we can do no better than to examine other writings of the Founding Fathers.

Alexander Hamilton in a pamphlet called The Farmer Refuted, published in 1775 in New York, mentions the same four points as the Declaration. Hamilton was answering a Tory denial of the existence of natural rights and he traces the denial back to an atheist source. Hamilton states:

Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed that the deity, from the relations we stand in to himself and to each other, has constituted an eternal and immutable law, which is indispensibly (sic), obligatory upon all mankind, prior to any human institution whatsoever.

This is what is called the law of nature, `which being coeval with mankind and dictated by God himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this; and such of them as are valid, derive all their authority, mediately, or immediately, from this original'(Blackstone).

Upon this law, depend the natural rights of mankind, the supreme being gave existence to man, together with the means of preserving and beautifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty, and personal safety.

Hence, in a state of nature, no man had any moral power to deprive another of his life, limbs, property or liberty; nor the least authority to command, or exact obedience from him; except that which rose from the ties of consanguinity.

Hence also, the origin of all civil government, justly established, must be a voluntary compact, between the rulers and the ruled; and must be liable to such limitations, as are necessary for the security of the ABSOLUTE RIGHTS of the latter; for what original title can any man or set of men have, to govern others, except their own consent? [4]

George Mason, author of the Virginia Declaration of Rights, which parented all the other State bills of rights and our national bill of rights — the first ten Amendments to the Constitution — enunciates the connection between God and the natural law.

Now all acts of legislation apparently contrary to natural rights and justice are in our laws and must be in the nature of things, considered as void. The laws of nature are the laws of God, whose authority can be superseded by no powers on earth. A legislature must not obstruct our obedience to Him from whose punishments they cannot protect us. All human constitutions which contradict His laws we are in conscience bound to disobey. Such have been the adjudication of our courts. [5]

The most important pamphleteer before the Revolution, drafter and signer of the national Constitution in 1787, was John Dickinson. He states that God is the source of natural rights:

Kings or parliaments could not give the rights essential to happiness, as you confess those invaded by the Stamp Act to be. We claim them from a higher source — from the King of Kings and Lord of all the earth. They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; and cannot be taken from us by any human power, without taking our lives. In short, they are founded on the immutable maxims of reason and justice. [6]

John Adams, signer of the Declaration of Independence, President of the United States after Washington, was chief architect of the Massachusetts Constitution and drafted almost all of its bill of rights. He indicates the relationship between God and the compact of the people which would establish government by their consent. Again we see the same principles as the Declaration of Independence:

We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His Providence, an opportunity, deliberately and peaceably, without fraud, violence, or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain, and establish, the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts. [7]

There is a fifth principle upon which the Founders built the American politico-legal system, not mentioned in the Declaration of Independence, but which is indicated in many other writings; since the government was to be built upon the people, if the system was to endure the people must be moral, virtuous. Paradoxically too, historians point out that the Founders had a great distrust for the inherent weakness of human nature; they believe in original sin, they would trust no one completely. So they took both facets into account.

To balance the weakness within human nature they separated the powers of government into its three natural divisions. The legislative would be separate from the executive, the judicial from the other two, and most important — the same individual or group would never exercise more than one power, yet each would be able to check the other. If the executive abused his power the legislature could impeach; if the legislature went beyond its function the judiciary could judge its laws invalid because unconstitutional, or the executive could exercise his veto. Judges were to be chosen by the executive, could be impeached by the legislature. We have the magnificent check and balance system: and Watergate is its tragic example of efficiency.

But the check and balance was at best the negating of human frailty; if the system was to be healthy the people who elect the officials, and the functionaries who made or carried out the laws must be of good character. In a word the people and their agents must be moral, have positive virtue. More than any other system the health and permanence of a democracy depended on the virtue of its people. Washington spoke for all the Founding Fathers, for the entire founding generation when he wrote in his Farewell Address:

Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. — In vain would that man claim the tribute of Patriotism, who should labour to subvert these great pillars of human happiness, these firmest props of the duties of Men & citizens. — The mere Politician, equally with the pious man ought to respect and to cherish them. — A volume could not trace all their connections with private and public felicity. — Let it simply be asked where is the security for property, for reputation, for life if the sense of religious obligation desert the oaths, which are the instruments of investigation in courts of justice? — And let us with caution indulge the supposition that morality can be maintained without religion... [8]

In summary, the Founders placed the existence of God, natural law, natural rights, the consent of the governed when establishing a constitution by compact, and the virtue of the people as the foundation of the American politico-legal system.

III NEGATING THE FOUNDING FATHERS BY CONSTITUTIONAL INTERPRETATION PEOPLE'S LOYALTY TO THE PRINCIPLES OF THE DECLARATION

At no time have the American people abandoned the founding philosophy; rather it lives in the heart and soul of the nation. The historian Clinton Rossiter sums this up:

Americans may eventually take the advice of their advanced philosophers and adopt a political theory that pays more attention to groups, classes, public opinion, power-elites, positive law, public administration, and other realities of twentieth-century America. Yet it seems safe to predict that the people, who occasionally prove themselves wiser than their philosophers, will go on thinking about the political community in terms of unalienable rights, popular sovereignty, consent, constitutionalism, separation of powers, morality, and limited government. The political theory of the American Revolution — a theory of ethical, ordered liberty — remains the political tradition of the American people. [9]

That the American people do believe in the political theory of the American Revolution, the philosophy which the Founding Fathers placed as the foundation of the Constitution and implemented in its Bill of Rights, is evidenced by the constancy with which Americans have held to the innate human dignity of all men, women, in all times, all places. In a word, we have held to the principle that the inalienable rights to life, liberty, and the pursuit of happiness belong to each member of the human race simply because he/she is human. Especially in times of crisis do the American founding ideals prevail. The crises can be pointed out:

The violation of the inalienable right to liberty was never reconciled fully with the national conscience. Slavery precipitated the Civil War and was rectified by the Thirteenth, Fourteenth and Fifteenth Amendments which were placed into the Constitution to restore to the freed slaves the rights to life, liberty, the legitimate pursuit of happiness.

The people supported World War I because they believed the Central Powers had destroyed human rights by the rape of Belgium, in sinking unarmed merchant ships, by destroying freedom because of the autocratic governments of the Central Powers: the world was not safe for democracy. In the Second World War the Nazi seizure of Belgium, the Netherlands, Poland, its system of concentration camps, its attempted annihilation of the Jews, violated the American principles that all human beings had human rights; this determined total commitment to the war effort on the Allied side. The alliance with Russia was temporary, to defeat the greater Nazi threat between 1941-45; but for fifty years the American people have been revolted by Communist atrocities against the life, liberty, happiness of its own and subject peoples. Even in Vietnam those who supported the government were convinced we were trying to stem the Communist enslavement of helpless people, while those against the government thought the United States was itself wantonly destroying the lives and happiness of the Vietnamese. Both groups believed in natural rights.

During these same generations the great movements which have won the people's support at home have been those which fostered the same human rights, even when the problems did not seem of crisis proportion. The labor movement won because the great majority of the people knew that 70 hour work weeks, dangerous conditions in mine and factory, child labor, the degradation of women in the work force, coupled with subhuman wages, were violations of human dignity. The more recent progress toward equality in Civil Rights regardless of color of skin and toward the equal rights of women (not the same as the Equal Rights Amendment) are movements based on the inherent dignity of all human beings; they have gained national support and move toward final victory because the American people do believe that all human beings are equal, do have an inalienable right to their dignity. The people implicitly believe that these rights come from a moral law which derives from human nature and which the civil law must reflect. And they tend to participate in these movements because they feel a moral obligation to do so.

Coupled with all this is the belief in God held by a vast majority of our people: ninety five percent in survey after survey indicate this, and over sixty percent are church affiliated. The people also instinctively make a distinction between what is moral and what is merely legal. Surveys show there is a widespread mistrust of politicians, the news media, business and labor leaders because the people do not buy the principle that everything which is legal is moral. If in Rossiter's phrase the people are wiser than their philosophers they are also more principled than their professional leaders.

Yet in contrast to this reservoir of goodness and ideals in the people — there is an evident decline in the morality and the practice which should come from a people with high ideals and a firm Judaeo-Christian background. What is the explanation for the discrepancy and default? Why are the principles and ideals enunciated by the Founding Fathers, still held by the people, not more in evidence, not more flourishing?

FAILURE OF AMERICAN LEADERSHIP

I think it is precisely the failure of American leadership which accounts for the deficiencies of the people. Our leaders for several generations have not reflected the ideals of the people, do not now formulate in words what the people believe in their hearts; the result is confusion for the people and decay within society. And this failure is attributable to a greater or lesser extent to every leadership group: to churches and churchmen, to the schools and educators, to the news media, to politicians, to the legal profession. This is not to say that every leader has failed but that every leadership group has failed the people in one way or another.

But the failure can be pinpointed most specifically to one group at the top of the legal profession: the Supreme Court. That this last can be said is only surprising if one ignores the fact that the moral ideals and philosophy of the Founding Fathers were enshrined in a legal system, a Constitutional form of government which had as its foundation the principles of the Declaration of Independence. It is by its misinterpretation of the Constitution, the abandonment of the Declaration as a guide for the Court, that the Supreme Court must be judged as the leadership group which has failed the people most critically. First let us examine the other groups.

The churches have failed because they permitted secularists from the other groups to dominate American life. Leading up to the Declaration of Independence were decades of sermons which explained the connection between law and morality, between God and government, between the inalienable rights of man and the natural law which came from the Creator. One Tory writer called the New England ministers “Mr. Otis's black regiment, the dissenting clergy.” These ministers had given their congregations a steady diet of “election sermons” which emphasized concepts of fundamental law, constitutional rights, limited government. [10] How long is it since the average American who attends church regularly has heard a sermon on the principle that government has its origin in human nature as created by God, that natural rights are the basis for civil right, that unless the Ten Commandments are reflected in Civil law and the society it governs human dignity is destroyed and social chaos must result?

Nor do the schools teach the principles upon which the nation was founded; the Declaration of Independence is ignored or mutilated in high school history texts. Watered-down social study courses are present day substitutes for American History courses. The people are also confused because public education has no place for the formal teaching of basic morality — the results are products who lack criteria for moral judgements. [11]

The communications media give cliches in place of moral principles. The principle of the Founders is that democracy can survive only if a people is moral, virtuous. TV in contrast surfeits the public with sex and violence, or wastes the public mind with hours of inanity. The air waves belong to the people as the air itself, and the people have as much right to unpolluted air waves as they have to clean air. But the great motivating force for the broadcasters is profit; the principle that the intrinsic nature of broadcasting makes it a public trust is lost in the dim background. Nor do journalists awaken public confidence in their leadership. There is too much slanted news, too much immoral sensationalism. A recent poll listed journalists below doctors, bankers, congressmen, preachers, teachers, the military in popular credence. Newspaper and news magazine leadership as now constituted will never lead the people out of confusion toward the moral ideals of the Founding Fathers.

Public distrust of politicians is notorious. It existed before Watergate. News accounts give the cause. From the time one learns to read the papers print a steady diet of city, state or national political corruption. The contrast between campaign promises and fulfillment is taken for granted. But there is something deeper. The Founders were men of principle who risked their lives for the basic human rights to life, liberty, the pursuit of happiness within the moral law, and their principles were understood and believed by the people because clarified by these leaders. But a modern presidential candidate will unblushingly imply that a woman's privacy is more important than a baby's life! The modern politician watches the polls to see which way the people seem to be going, then in that direction gets out a little in front. He is more interested in his image than in what he is. Politicians sell themselves today by marketing techniques, by the half minute commercial repeated six times each night before election day. The honest debate on issues, the Lincoln-Douglas confrontation to educate the public, is a thing of the past; only time will tell whether the Ford-Carter debate was a new dawn.

The Founders placed belief in God and acceptance of natural moral law (derived from reason and corroborated in the Judaeo-Christian revelation) as the foundation of the American system. The practical separation of God and morality from life and civil law is called secularism. What emerges from the near bankruptcy of the American leadership groups as outlined above is the reality that secularism has been in control of the American scene, contrary to the heritage of moral law of the Founding Fathers upon which they built the nation, and contrary to the principles of the Declaration of Independence still existing in the hearts of the people. With no leadership group voicing the Founders' ideals or clarifying them that the people could be guided with confidence toward a more just society the result is confusion and decay. The astronomical rise in crime, the moral disintegration evident in American society, is the natural child of secularism.

Of course every churchman, each educator, every TV producer or commentator, all journalists or politicians do not fit the secularist picture described; the leadership in general does. It is not without reason that the expression “the crisis in American leadership” is repeatedly heard — because it tragically exists.

SURRENDER OF LEGAL PROFESSION

But the ideals and principles of the Founding Fathers were enshrined in a politico-legal system which they passed on to posterity. How the rights they enunciated in the Declaration of Independence were to be used and protected was written into state and national constitutions, into federal and local law. Thus if there has been a loss of those ideals and principles it is to be expected that the legal profession which should have been their most careful guardian must be at the nerve center of the failure. It is. And the greatest dereliction points to the group at the top of the profession: the Supreme Court itself. In saying this it must be remembered that the situation did not happen overnight and that lawyers are products of their environment too; they hear the same sermons, go through the same educational system until they reach law school, read the same publications and view the same media as the rest of the people. They have been subjected to the secularism rampant in other leadership groups. But had lawyers as guardians of the politico-legal system put their fingers into the dike when constitutional interpretation veered away from the Founders' principles, had the profession been adamant when the Courts were remaking the Constitution by a reinterpretation which substituted a new secularist philosophy of law for that of the Founding Fathers who drafted the Constitution, the legal profession could have saved the day. It did not.

The failure goes back a hundred years. It is necessary to understand the historical context to realize what happened.

The American politico-legal system as established by the Founding Fathers was the product of more than three thousand years of the development of western civilization. The Judaeo-Christian tradition enshrined in our law and customs go back at least to Moses; the Ten Commandments are an expression of natural law. This same natural law was recognized by the Founding Fathers to have been expressed in Greek and Roman philosophy at least 400 years before Christ. They came together in the Christian tradition of western Europe; the American constitutional system was the high point of this development. Basic human rights were recognized as inalienable because they came from the Creator. Civil law must protect them, could specify how they would work in practice in American life; it could never do away with such rights because they were rooted in human nature.

Following the Founding Fathers, in the early nineteenth century, natural law as underlying American law was axiomatic. As more states entered the Union preambles of the new state constitutions indicated that the philosophy of the Declaration of Independence was the basis of the American system. The nation, however, was living uneasily with slavery and the new states which were expected to be aligned with the old slave states edited the time honored natural rights statements to meet their condition. The 1845 Texas Constitution read “all free men, when they form a social compact, are equal: in place of “all men, when they form a social compact, are equal.” The new states did not have to edit. Court decisions in general did not quote underlying theory, they merely quoted precedents from previous cases; but these were within common law tradition, which included natural law.

But as late as 1874 the Supreme Court in Loan Association v.Topeka used natural law directly:

There are limitations on such (State and National, ed.) power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who are husband and wife to each other should be so no longer, but that A. should therefore be the husband of C., and B. the wife of D. or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B.

With the embarrassment of slavery finished by the Civil War the Court had but to continue in this direction to restore fully the ideals of the Declaration of Independence. Instead it was led away from the American tradition by an alien philosophy from across the sea.

In 1859 Charles Darwin issued his Origin of Species with his theory that in the biological world progress came through the “survival of the fittest.” In the struggle for food and life the strongest survived to pass their characteristics to their offspring; a natural evolution occurred in living things to insure the new species formed would be better than their ancestors.

Herbert Spencer, an English philosopher idolized in the United States, applied Darwin's theory to economic progress. Spencer is the source of “Social Darwinism,” the philosophy taken as the guideline by Supreme Court majorities from the 1880's onward. According to Spencer automatic economic progress would take place when those fittest to survive in business were allowed to determine their practices unhindered by government interference: the policy of exaggerated laissez faire. The more ruthless the business methods and the larger a business grew, the greater the over all efficiency and production, the more prosperity for the nation. It was perfect justification of the Fisks and Goulds, the Vanderbilts and Rockefellers, the robber barons who destroyed all competition. John D. Rockerfeller could with great piety tell a Sunday-school audience “The growth of large business is merely a survival of the fittest...This is not an evil tendency in business. It is merely the working-out of a law of nature and a law of God.” But not the law of nature which was the foundation of the Constitution, that is mentioned in the Declaration of Independence, not the natural law of God which would defend the inalienable rights of the weak against business predators. [12]

Various lawyers and judges began to believe in Herbert Spencer's natural law. Meanwhile other lawyers in Europe and America were abandoning the traditional natural moral law as the basis of civil law; instead any law accepted by or tolerated by the community was good law. Positive law, whether made by courts or legislature, did not have to correspond with the moral law. By a natural progression, fed by secularist spirit of the times, whatever was legal became moral.

The lawyer's lawyer, the judge's judge, whole influence in American law went beyond all others in the late nineteenth and early twentieth centuries, was Supreme Court Justice Oliver Wendell Holmes, Jr. This complete positivist became the idol of the law schools. He was an enemy to the natural law concepts of the Founding Fathers. In his own words “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law.” [13] Or law is merely “a statement of the circumstances in which the public force will be brought to bear upon men through the courts.” [14] Basically law is not to protect inalienable rights or foster human dignity but is what is expedient for the community.

This is softened by Holmes' implication that law was administered by experienced men who keep in mind the result on the community. However, law is what the courts enforce. Paradoxically his most famous dissent opposed the majority decisions of his colleagues on the Supreme Court when they struck down a New York law which would have limited bakers to a sixty hour work week. “This case is decided upon an economic theory which a large part of the country does not entertain...The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statistics...” [15] But by Holmes' theory the Supreme Court had made law, and remaking the Constitution to Herbert Spencer's image became American law in practice.

For just about a century secularism has been the dominant force guiding American leadership groups; morality might be a personal standard but it was not to be the guide for society that the Founding Fathers said it must be if America was to be healthy, happy, to endure. In the law profession the insistence that law and morality must somehow coincide became moot; only legality mattered, only what the courts would enforce. Secularism among lawyers and judges was the chemical solvent engulfing and slowly changing to chalk the rock foundation upon which the nation was built. Members of the legal profession — (which might have been the shield, the coating for the piers of the foundation) — instead themselves applied the acid to the stone. It was not difficult for the Supreme Court by specific decisions to chisel away at the new chalk foundation; only the external shape remained, the original purpose of constitutional phrases was changed by court fiat.

FAILURE OF THE SUPREME COURT

The Court from 1875 on attacked every principle placed by the Founders as the foundation of the politico-legal structure of the nation. The heritage from the Fathers that the nation was built on God, on the natural moral law, on the existence of certain inalienable rights derived from this law, on the principle that the Constitution belongs to the people who made it by compact — and only they can change it; and that the American nation would last only as long as a moral people would sustain a moral government; all these pillars of the American politico-legal structure were attacked by the Supreme Court. To say this is not to challenge the Court as an institution. Undoubtedly the great majority of the decisions during this time upheld the law of the land and contributed to peace and justice in American society. But the implications for the future decay of American law as the Justices substituted their personal legal philosophies for that which the Founders placed under the Constitution were enormous. Meanwhile the people held deep in their hearts belief in God, that He had made a law to govern all men antecedent to civil law, that all men had dignity and rights which came from their common humanity, that the Constitution belonged to them, and that morality was indeed more basic than legality and was necessary for the well being of the nation.

To give some brief bill of particulars it is helpful to begin with the Court's substitution of its own philosophy for that given by the Founding Fathers in the 1857 Dred Scott decision which precipitated the Civil War. The Founding Fathers in many writings indicated a detestation for slavery, and had reason to hope for its natural demise; that put into the Constitution a compromise which would abolish the slave trade in twenty years. But the Court by Dred Scott put a dagger to the heart of the inalienable right to liberty by declaring Dred Scott types incapable of full citizenship and nullifying the Missouri compromise which had inhibited the spread of slavery. The Court imposed its own pro-slavery philosophy on the nation; the nation paid the price of Civil War.

But after the war the country spoke by inserting the 13th, 14th and 15th Amendments into the Constitution to insure liberty and the human rights of all, black and white. Then the Court ten years later used the prime amendment drafted to insure the human dignity of the freed blacks (the Fourteenth) as its tool to introduce Spencer's social Darwinism to be its new rule for Constitutional interpretation, to the detriment of the human rights of working Americans.

In the words of William Marnell describing the attitude held by American followers of social Darwinism “Such concepts as natural rights and human equality are part of the outworn folklore of a romantic past...and the entire tenet of social Darwinism rebut the romantic fallacy of human equality...Government exists to protect one's liberty to exercise his acquisitive instinct in the accumulation of property and thus to forward the progress of civilization. All that really is needed is a properly educated and disciplined legislature to write this philosophy into law, and a properly educated and disciplined Supreme Court to read it in...The Supreme Court began to show the requisite training and discipline about 1870 as the influence of the most dedicated social Darwinian in Court history (Justice) Stephen J. Field began to make itself felt...” [16]

Slowly, under Field's leadership, his philosophy became the philosophy of the Court though it was alien to the Constitution and never agreed upon by the people. In 1886 in the case of Santa Clara County v. Southern Pacific a corporation was declared a person within the meaning of the Fourteenth Amendment. The Fourteenth Amendment became the bill of rights for corporations to be used for the next fifty years against the human rights of the working man. Repeated attempts by state legislatures or Congress to shorten working hours (there were 70 hour work weeks then) to destroy child labor (children commonly worked 60 hours per week, and in 1913 it was estimated that 20% of American children 10-15 yrs. old earned their own living) or to protect women workers were nullified by the Supreme Court under one pretext or other. It is impossible to think that the American people, who alone had the right to change the meaning of the Constitution, ever intended it to be so interpreted as to nullify the human rights it was drafted to protect. It was only in the 1930s that the Supreme court was forced to reverse its social Darwinian exaggerated laissez faire economic philosophy as its determining criterion for Constitutional interpretation and under the pressure of the great Depression allow decent labor legislation to survive.

During the same era that the human rights of the laboring man were suppressed by the Court it was “busily perverting the plain intent of the Fourteenth Amendment — and the Fifteenth too — in another and even more indefensible fashion” [17] (the words of Professor Rodell of Yale Law School) by nullifying the laws passed by Congress to implement these Amendments designed to protect the freed blacks. Social Darwinism has been recognized to have racist overtones. Then in 1896 in Plessy v. Ferguson the Supreme Court saddled the country with legalized segregation in schools and transportation, with one lone Justice — John Marshall Harlan — crying in his dissent that “Our Constitution is color blind...” [18] This ruling held for sixty years, until undone by the Warren Court. But how much human agony was suffered because the Court imposed its philosophy on the Constitution instead of the principle of equality proclaimed by the Declaration of Independence, which the Constitution was intended to implement?

This sad recital implies that in the generations the Court adhered to Social Darwinism it attacked the foundation of the American system at three points: It replaced natural law with its Court made law, it destroyed the inalienable human rights of the laboring man and black (the right to life of the laboring man by preventing proper health protection; the right to liberty of the worker by preventing labor legislation and labor union development, of the black by upholding legalized segregation; and the preventing of the legitimate pursuit of happiness for both by these same rulings). The Court nullified the compact principle of government which held that only the people can change a constitution; the Court imposed its own changes without popular mandate, without attempting the formal amending process of going back to the people. Through it all the Supreme Court also usurped powers belonging to other parts of the government. Justice Brandeis could charge his colleagues with making themselves a “super-legislature,” [19] assuming legislative decisions which properly belonged to Congress of state legislatures: a violation of the written Constitution as set up by the people.

Following the time when the Court was attacking the foundation of the American politico-legal system by negating natural law, natural rights and the compact rights of the people, the Court began to chip away at two other foundation principles of the Founding Fathers; the recognition of God and the need for public and private morality.

The Founders were convinced that the American way of life would endure only if the recognition of God as the Creator and Provider of man was the starting point, the bedrock foundation of the system. They held also that a people must be moral, virtuous, if a just and happy society was to be the climate in which each human being could exercise his/her rights and pursue happiness; but a people would never be moral without recognizing God, without being religious. Washington expressed the conviction of all the Founders; “of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports...In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness — these firmest props of the duties of men and citizens...And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” [20]

Four times in history the Supreme Court said that American institutions presuppose a Supreme Being. The devotion to secularist principles exhibited by the Court in decision after decision belies these words. The Founding Fathers constantly went back to God as the Source of order and happiness in society; they did this by word and action and built a legal system upon a theist philosophy. By ignoring even the possibility that the existence of God must have practical recognition in civil law the Court destroys God as a foundation of the American way.

More directly the Court has interpreted the First Amendment which guarantees freedom of religion in such a way as to practically destroy theistic religious freedom and establish humanist secularism as the national religion. The Amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The earliest great commentator on the Constitution, Justice Joseph Story, who sat on the Bench with John Marshall, said this clause bans any preferential treatment of a particular religion (although Christianity in general could receive preferential treatment). [21] During the past century the Court seized upon a phrase of Jefferson written in a private letter (modified later in his second Inaugural, the modification ignored by the Court) that the purpose of the Amendment was to build “a wall of separation between Church and State.” [22] The Court especially by key decisions affecting education has made a wall so high that its weight is crushing religion as understood by the Founding Fathers.

In McCollum v. Board of Education (1948) the Court forbade religious groups from teaching religion in public school buildings to members of their own church if parents of the students request it. This is in spite of the fact that public school teachers themselves taught religion to their students in the days of the Founding Fathers who were convinced it was necessary if a moral people (who could alone sustain democracy) was to result. The effect of a ruling such as McCollum is to eliminate God as an active presence in the thinking of the students, the future citizens, and it makes it impossible to give proper moral training to children, since morality and religion are intertwined.

In Engel v. Vitale (1962) the Court banned this prayer from New York schools: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.” [23] No child was obliged to join in the prayer over his or her parents' objection. Four times in history the Court said that American institutions presuppose God; the public school system, one of the great American institutions, was not allowed to presuppose Him in practice. There is no greater contradiction of the founding principles of the nation than the Court's complete secularization of the public school system.

THE BLACKMUN DECISIONS, JAN. 22, 1973

The most vicious recent blow administered by the Supreme Court to the principles placed under American Constitutional law by the Founding Fathers was struck in the twin decisions Roe v. Wade and Doe v. Bolton, written by Justice Harry A. Blackmun and handed down by the Court on Jan. 22, 1973. The rulings struck down anti-abortion laws in all fifty states; they destroyed the right to life of unborn human beings. The decisions destroyed the primordial inalienable right of the Declaration of Independence, the right to life, just as surely as the infamous Dred Scott ruling which precipitated the Civil War attacked the second inalienable right of the Declaration, the right to liberty.

The key words of Justice Blackmun in Roe v. Wade are:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of life or health of the mother. [24]

Professor David W. Louisell, Professor of law at the University of California (Berkeley) categorizes the decisions:

By judicial fiat, the mere ipse dixit of seven Justices, the decisions supplanted the constitutionally prescribed legislative power of all the states and the federal government with the subjective value judgments of seven Justices. The decisions are the very culmination of the evil of judicial usurpation of legislative power, warned against by Justice Oliver Wendell Holmes, and which took the Court to the edge of doom in the court-packing plan of Franklin Roosevelt in 1937. While other judicial supersessions of legislative power have of course been resented by portions of the population at given times and places, this one is unique in the extremity of its reach, the universality of its effect, and the subjectivity of the basis of the Court's action. The Court even had hesitancy about which constitutional provision to use to supplant historic legislative power with the new-found 'right to privacy.' This is why the Court's action was characterized by dissenting Justice White as an exercise of 'raw judicial power' and is resented as much from the constitutional viewpoint by scholars in sympathy with legislative liberalization of abortion, as it is by those opposed to permissive abortion. [25]

It is beyond the scope of this article to go into the overwhelming scientific proof that human life is a continuum from conception through birth until death in old age. That the unborn offspring of human beings does possess an individual human life distinct from his/her mother is the crucial fact of the case which the Blackmun Court refused to examine. In the words of Professor Byrn of Fordham University School of Law “The refusal to resolve the question of fact at the outset is the crucial error of Wade. There is a `long course of judicial construction which establishes as a principle that the duty rests on this Court to decide for itself facts or constructions upon which federal constitutional issues rest...'” (Nap v. Illinois, 360 U.S. 264, 272) [26] Keeping in mind the scientific fact that human life begins at conception and comparing the Blackmun decisions with the principles placed under the American politico-legal system by the Founding Fathers it becomes evident that Blackmun violates every principle of the Fathers: the existence of God, natural law, natural rights, compact establishment of governments, and the need for morality among the people.

God. The complete secularist attitude of former Courts is exemplified in Blackmun. The possibility that the existence of God, accepted by 95% of our people, requires a conclusion that from this existence there must be a natural law antecedent to civil law is never even considered; but Hamilton justified the Revolution which gave the nation its existence by showing that only atheists could deny natural law.

Natural law. As above. Also, the Court sought no guide for what ought to be in law in the nature of man; it simply decreed the right to privacy of a woman to be more important in Court-decreed law than the right to life of her baby!

Natural Rights. The Blackmun decision destroyed the primordial right listed in the Declaration of Independence, the right to life, without which no other right exists. If the Supreme Court of the U. S. government can legalize the killing of innocent, defenseless human beings, the U. S. government has achieved totalitarian power as complete as that of Nazism or Communism.

Compact. Only the people have a right to change the meaning of the Constitution which derives its authority from them. But in Blackmun the Court has arbitrarily given a new meaning to it, has nullified laws recognized as constitutional for more than a hundred years. Before the Fourteenth Amendment was ratified in 1868 twenty-six states incriminated abortion by statute. Within the next fifteen years seven more states had passed laws making abortion a crime. As of 1965 essentially all of the fifty states prohibited induced abortion except to protect the life of a pregnant woman. Without the people's authorizing a new amendment to make such laws unconstitutional how can the Court destroy the constitutionality of laws unchallenged through so many years? Is the Constitution so obscure that so many lawyers, so many judges, in so many states, through so many generations, would enforce laws contrary to our fundamental law? The power over human life assumed by the Court in Blackmun is the ultimate abuse of the compact principle.

And the people decided that our government would be one in which the three essential governmental powers — legislative, judicial, executive — should be separate, reside in different groups or individuals. For the Supreme Court to usurp legislative powers is just as unconstitutional as for the legislature to make itself into a court of justice, to condemn a man by statute. The destruction of state legislative powers, and the decree to decide what protection would or would not be given to the unborn in different stages of development by the Blackmun decisions were usurpations of legislative functions. [27]

Morality. In Blackmun the Court gave the supreme example of solving moral problems by legislative fiat. We do not live in an age known for precise ethical thinking; secularist education has destroyed the standards of right and wrong for those without sound religious background. For these millions Supreme Court legality becomes morality. For the promiscuous teen-ager, among others, it can mean and has meant repeated abortions. The Court itself gives a supreme example of amorality and the apparent lack of realization of the immorality of their act by the Justices who voted for Blackmun reflects the ethical shallowness of leaders dominated by secularism. We presume the Justices are sincere, subjectively good men — but what a contrast these Justices exhibit in their principles to the sublimity of the ethical principles placed as the foundation of the nation by the Fathers!

And so we return to the Declaration of Independence. This is the bicentennial we have celebrated. The Declaration lives in the hearts of the American people. It represents a high point in the maturing of Western and Judaeo-Christian civilization. After more than 3,000 years of development the individual human being was proclaimed, in a document intended to be the foundation of a new civil system, to have rights not by government permission, not merely civil or constitutional, but simply because he/she was human. For the first century of national existence the truths underlying this document were considered axiomatic. Blackmun represents the culmination of an attack on American civilization which began in the second century of the nation, about a hundred years ago. It is therefore not just the horror of close to a million American lives destroyed each year with Court permission; we are also witness to the death of American civilization if Blackmun is allowed to stand.

THE BLACKMUN DECISIONS: JULY 1, 1976

The Blackmun decisions of Jan. 22, 1973, nullified the principles proclaimed in the Declaration of Independence, the self-evident truths established by the founding generation as the bed-rock upon which the American governmental system was to be built. On July 1, 1976, a second group of pro-abortion rulings also written by Justice Blackmun, were handed down by the Court. This set of decisions not only attacked American civilization by denying the inalienable right to life of the unborn but went further to attack the right of the traditional American family to exist. The one which concerns us here is Planned Parenthood v. Danforth. The pertinent sections of this decision are summarized in the Syllabus which precedes the case in The U.S. Law Week for June 29, 1976, pp 5197 and 5198:

4. The spousal consent provision in Sec. 3 (3), which does not comport with the standards enunciated in Roe v. Wade, 410 U. S. at 164-165, is unconstitutional, since the State cannot “delegate to a spouse a veto power which the (State itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.

5. The State may not constitutionally impose a blanket parental consent requirement, such as Sec. 3 (4) as a condition for an unmarried minor's abortion during the first 12 weeks of her pregnancy for substantially the same reasons as in the case of the spousal consent provision, there being no significant state interests, whether to safeguard the family unit and parental authority or otherwise, in conditioning an abortion on the consent of a parent with respect to the under-18-year-old pregnant minor. As stressed in Roe, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. 410 U. S., at 164.

8. The first sentence of Sec. 6 (1) impermissibly requires a physician to preserve the fetus' life and health, whatever the stage of pregnancy. The second sentence, which provides for criminal and civil liability where a physician fails 'to take such measures to encourage or to sustain the life of the child, and the death of the child results,' does not alter the duty imposed by the first sentence or limit that duty to pregnancies that have reached the stage of viability, and since it is inseparably tied to the first provision, the whole section is invalid. [28]

Justice Blackmun wrote for the majority, again over the dissenting voices of Justices White and Rehnquist. Chief Justice Burger concurred with White and Rehnquist, and Justice Stevens joined them in defense of one section of the Missouri law which was being struck down by the majority, #5 of the Syllabus above. The Court reiterated its judgement that Roe v. Wade was now part of American law.

Seen in their historical context it is impossible to use language strong enough to adequately condemn these Court rulings. The pro-abortion drive of the 60's was being halted by democratic process when the first Blackmun opinions were handed down. In 1972 Michigan and North Dakota had defeated liberalized abortion by popular referendum. The legislature of New York and Pennsylvania had done the same by statutes which were vetoed by Governors Rockerfeller and Shapp. Many other states had moved or were moving into a pro-life direction. The Court stopped this democratic process by its use of “raw judicial power,” made it impossible for the American people through the states to make their own judgement on the value of unborn human life itself or the social value of the millions of human lives actually being destroyed. In Planned Parenthood v. Danforth the Court repeated its usurpation of the right of the American people alone to make basic decisions affecting the nation. Decisions of such magnitude belong to the people, not to unelected justices who are in practice beyond the reach of the political process of a government “of the people, by the people, for the people.”

But it is not merely the destruction of the democratic process involved in the Blackmun decision that make them reprehensible. They are an attack on American civilization itself. Relative to unborn human beings, the Jan. 22, 1973 rulings destroyed the primordial right listed in the Declaration of Independence, the right to life, and did this as we were preparing to celebrate the birthday of the nation founded on the principles of that document. Then on July 1, 1976, three days before the bicentennial day, the second set of decisions reiterated the attack on life and instituted an attack on the family structure necessary for the health of American society. Only God can judge the subjective consciences of the Justices of the majority — but the objective evil of their acts is incapable of adequate wording. Watergates come and go, unfortunately, but evil constitutional decisions can have effects for generations — or forever.

Since Planned Parenthood v. Danforth builds upon Roe v. Wade as its precedent, all the criticisms of Roe mentioned above are valid also against Planned Parenthood v. Danforth. The Roe anti-life syndrome is also emphasized by the ruling in Section 8 of Danforth (above) that a doctor does not have to give the same care to the possibly-viable fetus he aborted (in common language, a premature human baby whose life might be saved) as to a viable fetus (a premature baby) which is spontaneously aborted by a mother who wanted it. This is brought out in the words of the dissenting opinion of Justices White, Rehnquist and Burger. The Justices first quote the Missouri statute in question, then proceed to their dissent:

Section 6 (1) of the Act provides:

'No person who performs or induces an abortion shall fail to exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted. Any physician or person assisting in the abortion who shall fail to take such measures to encourage or to sustain the life of the child, and the death of the child results, shall be deemed guilty of man-slaughter...Further, such physician or other person shall be liable in an action for damages.'

If this section is read in any way other than through a microscope, it is plainly intended to require that, where a 'fetus...(may have) the capability of meaningful life outside the mother's womb,' Roe v. Wade, supra, at 163, the abortion be handled in a way which is designed to preserve that life notwithstanding the mother's desire to terminate it. Indeed, even looked at through a microscope the statute seems to go no further. It requires a physician to exercise 'that degree of professional skill...to preserve the fetus,' which he would be required to exercise if the mother wanted a live child. Plainly, if the pregnancy is to be terminated at a time when there is no chance of life outside the womb, a physician would not be required to exercise any care of skill to preserve the life of the fetus during abortion no matter what the mother's desires. The statute would appear then to operate only in the gray area after the fetus might be viable but while the physician is still able to certify 'with reasonable medical certainty that the fetus is not viable.' See Sec. 5 of the Act which flatly prohibits abortions absent such a certification. Since the State has a compelling interest, sufficient to outweigh the mother's desire to kill the fetus, when the 'fetus...has the capability of meaningful life outside the mother's womb,' Roe v. Wade, supra, at 163, the statute is constitutional.

Incredibly, the Court reads the statute instead to require 'the physician to preserve the life and health of the fetus, whatever the stage of pregnancy,' ante, at 31, thereby attributing to the Missouri Legislature the strange intention of passing a statute with absolutely no chance of surviving constitutional challenge under Roe v. Wade, supra.

The Court compounds its error by also striking down as unseverable the wholly unobjectionable requirement in the second sentence of Sec. 6 (1) that where an abortion produces a live child, steps must be taken to sustain its life. It explains its result in two sentences:

'We conclude as did the District Court, that Sec. 6 (1) must stand or fall as a unit. Its provisions are inextricably bound together.'

The question whether a constitutional provision of state law is severable from an unconstitutional provision is entirely a question of the intent of the state legislature. There is not the slightest reason to suppose that the Missouri Legislature would not require proper care for live babies just because it cannot require physicians performing abortions to take care to preserve the life of fetuses. The Attorney General of Missouri has urged here that the only intent of Sec. 6 (1) was to require physicians to support a live baby which resulted from an abortion. [29]

Criticising other aspects of the Blackmun ruling the dissenting words of Justices Burger, White and Rehnquist also indicate the attack on the family structure which is included in Danforth. The attack on the legitimate right of the father to protect the life of his unborn offspring from the unilateral decision of his wife and the lethal act of the doctor is evident:

Roe v. Wade, 410 U. S. 113, 163, holds that until a fetus becomes viable, the interest of the State in the life or potential life it represents is outweighed by the interest of the mother in choosing 'whether or not to terminate her pregnancy.' Id. at 153. Section 3 (3) of the Act provides that a married woman may not obtain an abortion without her husband's consent. The court strikes down this statute in one sentence. It says that 'since the State cannot...prescribe abortion...the State cannot delegate authority to any particular person, even the spouse, to prevent abortion...' Ante, at 15. But the State is not — under Sec. 3 (3) — delegating to the husband the power to vindicate the State's interest in the future life of the fetus. It is instead recognizing that the husband has an interest of his own in the life of the fetus which should not be extinguished by the unilateral decision of the wife. It by no means follows, from the fact that the mother's interest in deciding 'whether or not to terminate her pregnancy outweighs the State's interest in the potential life of the fetus, that the husband's interest is also outweighed and may not be protected by the State. A father's interest in having a child — perhaps his only child — may be unmatched by any other interest in his life. See Stanley v. Illinois, 405 U. S. 645, 651, and cases there cited. It is truly surprising that the majority finds in the United States Constitution, as it must in order to justify the result it reaches, a rule that the State must assign a greater value to a mother's decision to cut off a potential human life by abortion than to a father's decision to let it mature into a live child. Such a rule cannot be found there, nor can it be found in Roe v. Wade, supra. These are matters which a State should be able to decide free from the suffocating power of the federal judge, purporting to act in the name of the Constitution. [30]

The same dissenting Justices, joined by Justice Stevens, also upheld a State's right to require parental consent for the first trimester abortion of a pregnant minor. Again we have the implicit recognition of the family unit in society — which five Justice majority would obliterate via Danforth:

Section 3 (4) requires that an unmarried woman under 18 years of age obtain the consent of a parent or a person in loco parentis as a condition to an abortion. Once again the Court strikes the provision down in a sentence. It states: 'Just as with the requirement of consent from the spouse, so here, the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy... Id., at 20. The Court rejects the notions that the State has an interest in strengthening the family unit, or that the parent has an 'independent interest' in the abortion decision, sufficient to justify the statute and apparently concludes that the statute is therefore unconstitutional. But the purpose of the parental consent requirement is not merely to vindicate any interest of the parent or of the State. The purpose of the requirement is to vindicate the very right created in Roe v. Wade, supra — the right of the pregnant woman to decide whether or not to terminate her pregnancy.' Id., at 153 (emphasis added). The abortion decision is unquestionably important and has irrevocable consequences whichever way it is made. Missouri is entitled to protect the minor unmarried woman from making the decision in a way which is not in her own best interests, and it seeks to achieve this goal by requiring parental consultation and consent. This is the traditional way by which States have sought to protect children from their own immature and improvident decisions; and there is absolutely no reason expressed by the majority why the State may not utilize that method here. [31]

But Planned Parenthood v. Danforth when analysed in the light of history becomes an even more complete undermining of traditional American civilization than the dissenting Justices indicate. By the ruling that a father does not have the right to protect his unborn offspring because the abortion decision in the first three months of pregnancy belongs exclusively to mother and doctor, a six Justice majority attacks the family as the basic unit of society. Five Justices formed the majority for a second anti-family ruling: parental consent cannot be required by law during the first trimester of an unmarried minor's pregnancy. Since respect for the rights and duties of husbands and parents imply a respect for the family as a unit, which has always been implicit in American law, Planned Parenthood v. Danforth is a direct attack on family life and structure as understood in the American tradition. As there are basic natural rights of individuals antecedent to civil law, so in the American tradition the family as a unit precedes civil society and ought to be protected by civil law.

The Founding Fathers built American society according to the nature of man as interpreted by the more than 3,000 year tradition of Western and Judaeo-Christian civilization. They respected the natural moral laws which govern marriage and the family: husband and wife, father and mother, parents and children have rights and duties toward each other because human nature requires these obligations as soon as the marriage contract is entered into or the family unit exists. Just as individuals have the inalienable rights to life, liberty, the pursuit of happiness within the moral law which civil law must protect, so the family unit has its natural right to exist and freely seek happiness in a moral way. No government, no branch of government — including the Supreme Court — can attack family rights and obligations without undermining the American civilization established by the Founding Fathers.

It is interesting to note how two of the Founding Fathers take the family unit for granted in their writings. James Otis in the 1760 “Writs of Assistance Case” first analysed the nature of the struggle for human rights which was the American difference with the mother country, and Alexander Hamilton in his 1775 pamphlet “The Farmer Refuted” examined the nature of civil society; both recognized the family as a unit. One does not have to agree with Otis in his 18th century reliance on Newtonian science as a model for society; his thesis of the family as the basic unit of society is justified by the history of civilization. In common with the other Founders he starts with an intelligent God as the Planner for the human race and includes the family as the unit of society intended by God:

What shall we say then? Is not government founded on grace? No. Nor on force? No. Nor on compact? Nor property? Not altogether on either. Has it any chief cornerstone, but what accident, chance or confusion may lay the moment and destroy the next? I think it has an everlasting foundation in the unchangeable will of God, the author of nature, whose laws never vary. The same omniscient omnipotent, infinitely good and gracious Creator of the universe, who has been pleased to make it necessary that what we call matter should gravitate, for the celestial bodies to roll round their axes, dance their orbits and perform their various revolutions in that beautiful order and concert, which we all admire, has made it equally necessary that Adam and Eve to these degenerate days, the different sexes should sweetly attract each other, form societies of single families, of which larger bodies and communities are as naturally, mechanically, and necessarily combined, as the dew of Heaven and the soft distilling rain is collected by the all enlivening heat of the sun. Government is therefore most evidently founded on the necessities of our nature. It is by no means an arbitrary thing, depending merely on compact or human will for its existence. [32]

Alexander Hamilton implies the family unit and specifies the right of parents to command:

Upon this law, (the natural law, ed.) depend the natural rights of mankind, the supreme being gave existence to man, together with the means of preserving and beautifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty, and personal safety.

Hence, in a state of nature, no man had any moral power to deprive another of his life, limbs, property or liberty; nor the least authority to command, or exact obedience from him; except that which rose from the ties of consanguinity. [33]

The philosophy of the Founding Fathers was one with their theology as far as these concern the nation they were founding. In most areas the Founders had such a plurality of beliefs that common ground would be hard to find. However, in the application of the Judaeo-Christian moral principles to political society they held firmly to a common ground upon which they could build the nation. That common ground was the natural law when it expressed theologically the same rights and obligations which in philosophy were the inalienable natural rights. The common theological expression was the biblical Ten Commandments — and formulated this way the place of the family as the basic unit of American society becomes even more deeply rooted than the wording of Otis or Hamilton imply.

The Founding Fathers, the founding generation, adhered to the Ten Commandments as THE theological expression of the moral law. Commandments 5 to 9 (in the King James version of the bible, the translation used by the Founders) govern man's actions toward his fellow man and indicate the foundation placed under the American nation. These are:

5. Honour thy father and mother.

6. Thou shalt not kill.

7. Thou shalt not commit adultery.

8. Thou shalt not steal.

9. Thou shalt not bear false witness against thy neighbor.

George Mason who helped draft the Constitution gives us the key to the union of the American philosophy and theology in the Ten Commandments. He also indicates how civil law must reflect this union. By implication he leads us very directly to the protection that civil law must give to the individual and family — and to a condemnation of the Supreme Court anti-family decrees of Planned Parenthood v. Danforth, the July 1, 1976 Blackmun decision:

Now all acts of legislation apparently contrary to natural rights and justice are in our laws and must be in the nature of things, considered as void. The laws of nature are the laws of God, whose authority can be superseded by no powers on earth. A legislature must not obstruct our obedience to Him from whose punishments they cannot protect us. All human constitutions which contradict His laws we are in conscience bound to disobey. Such have been the adjudication of our courts. [34]

To put Mason in proper present day context the words “Supreme Court” should be substituted for “legislature.” In his day it was the legislatures that Mason feared as violators of moral law, the law of God. It probably was beyond his comprehension that a Court established to secure justice in accordance with the God-given laws of morality would itself disown the moral law, the standard by which it was to judge the validity of legislative acts.

The listed Commandments imply the same rights as those proclaimed in the Declaration of Independence and the other writings of the Founders to be the foundation of governments: (for the moment we bypass #5 and #7):

6. “Thou shalt not kill.” In the Old Testament context this means you cannot directly and intentionally kill another innocent human being — but no other human being can morally kill you as long as you are innocent. You, in common with each human being, have an inalienable right to your life.

8. “Thou shalt not steal.” You may not steal from anyone but no one may steal from you. You have an inalienable right to honestly held property.

9. “Thou shalt not bear false witness.” You may not lie to or about another person. But no one ought to deceive you or lie about you. You have a natural right to truth and reputation.

The Ten Commandments were to be the guide-lines for the pursuit of happiness mentioned in the Declaration of Independence. This can be seen in other writings of the Founding Fathers. [35]

Two of the Ten Commandments to protect and guide the relationship within the family unit:

5. Honour thy father and mother.

7. Thou shalt not commit adultery.

It is easily seen that the Justices of the majority in Planned Parenthood v. Danforth are attacking the rights and obligations implied in these Commandments when they strike down state laws requiring a husband's consent for his wife's abortion and parental consent in the case of a minor daughter seeks abortion. The right to life implicit in the 6th Commandment is also violated by adhering to the Roe v. Wade pro-abortion precedent. The Justices attack the rights and obligations of children and parents inherent in the family unit which is implied in the 5th Commandment, “Honour thy father and mother.” They also attack the family unit, confirmed by the 5th and 7th Commandments, by preventing a father from protecting his unborn offspring.

These are the breath taking decisions of the Court — they are attacks on the principles of the Judaeo-Christian and Western Civilization which constitute the foundation of American civilization. History is our witness. Scripture scholars point out that the list of rights and obligations implied by the Ten Commandments also occur in the civil codes of the nations surrounding the Israel of Moses some 1500 years before Christ. [36] These scholars conclude that God through the Mosaic Ten Commandments is giving divine sanction to natural moral principles recognized by the gentile nations. Legal scholars note that the great Roman jurists of 2000 years ago recognized these same general rights and obligations in the laws of the nations which became part of their empire, and concluded they were basic to human nature. [37] The Roman judges therefore used the same principles in making their decisions, incorporated them into their law.

These moral rights and duties which the natural law traditionally gives to individuals and the family are the rules of Western and Judaeo-Christian civilization. They have been understood and clarified by more than 3500 years of development, they are the rules for civilized living, they are intrinsic to American civilization and recognized in our common and statute law. But with a wave of the hand, a signature appended to a judicial decree purporting to give true meaning to the Constitution, five or six American Justices sweep aside, attack the guidelines developed in thousands of years of civilized society. They destroy the essential rights of the human person and the family, rights necessary for human happiness and safety. George Mason, James Madison, Alexander Hamilton, George Washington would stand aghast at this misuse of the Constitution they drafted.

In Roe v. Wade and Planned Parenthood v. Danforth the Supreme Court has entered forbidden territory, the natural rights reserved to the people in the minds of the original writers of the Constitution and later specifically implied in the Ninth Amendment. The Court is attacking the foundation of American society, American civilization. The Fathers bled to establish the American nation and exerted the fullness of their genius to build a legal superstructure, national and state constitutions, which would protect and perpetuate natural human rights and human dignity. The Justices are using the beams from the superstructure to pry loose its foundation stones. Contrast these modern Justices with the great lawyers who gave us the Constitution; objectively the attack by these present day leaders on the moral foundation of the nation, on the Decalogue itself, is vicious. One can only believe they know not what they do. As leaders they fail our people, they waste the capital of principles and ideals inherited from our forefathers. Without the people's knowledge or consent they have turned a government of law into a government of men.

There is one basic remedy which must be demanded by the people: a Human Life Amendment to the Constitution. The people must tell the Court that American civilization is their heritage, that there are some basic and inalienable rights beyond its jurisdiction to tamper with. Congress, by preparing an amendment to be submitted to the people through the states, has the opportunity to vindicate its coequal authority with the Supreme Court as one part of the tripartite government established by the Constitution. The President should show his respect for the American tradition that human life is sacred and indicate the Constitutional equality of Executive and Judicial branches by asserting his leadership in the drive to submit the Human Life Amendment. He would do well to ponder the words of one of his greatest predecessors, Thomas Jefferson wrote:

To consider the judges as the ultimate arbiters of all constitutional questions (is) a very dangerous doctrine indeed, and one which would place us under a despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passion for party, for power, and the privilege of their corps. Their maxim is “boni judicis est ampliare jurisdictionem,” and their power the more dangerous as they are in office for life...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. [38]

The proper Human Life Amendment (not one which would give the states jurisdiction over unborn human life, a local option settlement now inadequate because the Court has created a national problem) would restore the sanctity and inalienability of human life as a foundation stone of American civilization. It will undo the evil of Roe v. Wade and the attack on family life implied in Planned Parenthood v. Danforth. It will nullify the Court attack on the Ten Commandments. A Human Life Amendment will put America back into the mainstream of Western and Judaeo-Christian civilization, replace the foundation stones without which American society cannot survive to serve human dignity. Such an amendment will restore to the American nation the vision and ideals of the Founding Fathers. It will insure that the American heritage is passed on to future generations, not allowed to be dynamited by inadequate present day leadership. It will nullify a Supreme Court ruling, more dangerous in its implications that the Dred Scott decision which precipitated the Civil War.

ENDNOTES

  1. National Archives, RG 59: GENERAL RECORDS OF THE DEPARTMENT OF STATE, Letters from John Hancock, Volume 4, Sept. 15, 1775 to July 23, 1776, pp. 16-217. Back to text.
  2. Oxford History of the American People, Vol. 1, Samuel Eliot Morison, New American Library, 1972, p. 366. 2a Cf. A Nation Built on God, Edward J. Melvin, C. M., Our Sunday Visitor, Huntington, Ind., 1975, pp. 46-53. Back to text.
  3. The Declaration does not call the existence of God self-evident. It is rather a truth which can be demonstrated beyond doubt, and was basic to the political philosophy of the Founders. Cf. also We Hold These Truths for the listing of the basic truths, by John Courtney Murray, S. J., Doubleday Image Books, N. Y., 1964, pp. 40-50. Back to text.
  4. Alexander Hamilton, The Farmer Refuted, (New York, 1775) pp. 5-6. Back to text.
  5. Jefferson's Va. Rep., 109. Mason was defending the right to liberty of certain Indians; the case is Robin v. Hardaway, and Mason cites Coke's Report of Bonham's Case and Calvin's case. Back to text.
  6. John Dickinson. Address to the Committee of Correspondence in Barbados, 1766. Quoted in Benjamin Fletcher Wright, American Interpretations of Natural Law (Cambridge, Mass. Harvard University Press, 1931), p. 77. Back to text.
  7. Documents of American History, Vol. I, Henry Steele Commager, ed. F. S. Crofts & Co., New York, N. Y., p. 107. Back to text.
  8. Ibid, p. 173. Back to text.
  9. Seedtime of the Republic, Clinton Rossiter, Harcourt Brace Co., New York, N. Y., 1953, p. 449. Back to text.
  10. Cf. Religion in America, Winthrop S. Hudson, Charles Scribner's Sons, New York, 1973 (Sec. Ed.) pp. 83-102. Back to text.
  11. The Founding Fathers: An Examination of Conscience, Edward J. Melvin, C. M., Our Sunday Visitor, Huntington, Ind., 1976, pp. 7-12, 68, 94-103.
    Back to text.
  12. Cf. Man Made Morals, William H. Marnell, Doubleday & Co., Garden City, N. Y. 1966, pp. 237-256. Back to text.
  13. The Path of the Law, Oliver Wendell Holmes, Jr., in An American Primer, ed. by Daniel J. Boorstin, Mentor Books, New American Library, New York 1966. p. 619. Back to text.
  14. The American Philosophy of Law, Francis P. LeBuffe, S. J., and James V. Hayes, Crusader Press, New York, 1947, p. 378. Back to text.
  15. Lochner v. New York, Oliver Wendell Holmes, Jr., in An American Primer, ed. By Daniel J. Boorstin, Mentor Books, New American Library, New York 1968, p. 686. Back to text.
  16. Man Made Morals, William H. Marnell, sup. p. 248. Back to text.
  17. Nine Men, Fred Rodell, Random House, Inc., New York, p. 165. Back to text.
  18. Plessy v. Ferguson, in American Constitutional Law, 2nd ed., Rocco J. Tresolini, the Macmillan Co., N. Y., 1965, p. 600. Back to text.
  19. The Constitution And What It Means Today, Edward S. Corwin, revised by Harold W. Chase and Craig R. Ducat, Princeton University Press, Princeton, N. J., 1973. Back to text.
  20. Documents of American History, Henry Steele Commager, sup., p. 173. Back to text.
  21. The Constitution And What It Means Today, Edward S. Corwin, sup. p. 269. Back to text.
  22. Ibid. p. 270. Back to text.
  23. Church and State in American Law, John J. McGrath, Bruce Publishing Co., Milwaukee, 1962, p. 397. Back to text.
  24. United States Law Week, 1-23-73, p. 41 LW 4229. Back to text.
  25. The Burdick Proposal: A Life-Support Amendment, David W. Louisell, in Human Life Review, Fall, 1975, p. 10. Back to text.
  26. Fordham Law Review, Fordham University Press, Bronx, N. Y., May 1973. Back to text.
  27. Cf. Dissent of Justice William H. Rehnquist re Roe v. Wade, United States Law Week, 1-23-73, p. 41 LW 4231-4232. Back to text.
  28. U. S. Law Week, 6-29-76, 44 LW 5197-5198. Back to text.
  29. U. S. Law Week, sup. pp. 5211-5212. Back to text.
  30. U. S. Law Week, sup. p. 5209. Back to text.
  31. U. S. Law Week, sup. p. 5210. Back to text.
  32. Rights of the British Colonies Asserted and Proved, James Otis, London, 1765, p. 10. Back to text.
  33. The Farmer Refuted, Alexander Hamilton, New York, 1775, pp. 5-6. Back to text.
  34. Jefferson's Va. Rep. 199, sup. Back to text.
  35. Cf. Washington's First Inaugural Address and Farewell Address. Back to text.
  36. Article on Exodus, by John E. Huesman, S. J., in The Jerome Biblical Commentary, p. 57. Back to text.
  37. The Natural Law, Heinrich A. Rommen, B. Herder Book Co., St Louis, 1947 pp. 28-29. Back to text.
  38. Letter to Jarvis, 1829, Thomas Jefferson, from Thomas Jefferson on Democracy, edited by Saul K.. Padover, Mentor Book of New American Library, 1939, New York. Back to text.

ACKNOWLEDGEMENT

Melvin, Rev. Edward J. “The Legal Principles of the Founding Fathers and the Supreme Court.” Pro Life Coalition of Pennsylvania (1977).

THE AUTHOR

Rev. Edward J. Melvin, C.M.

Copyright © 1977 Rev. Edward J. Melvin, C.M.


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Not all articles published on CERC are the objects of official Church teaching, but these are supplied to provide supplementary information.