Mississippi just passed a fetal heartbeat law like the one Iowa passed last year, but it is unlikely to stick around long. Mississippi already had a less-restrictive 15-week bill blocked by a federal judge last year.
Iowa’s law was “struck down” by an Iowa state court for violating the Iowa State Constitution, but if it hadn’t been, a federal court likely would have blocked it. In Ohio, the new governor says he will sign a heartbeat bill that former governor John Kasich vetoed because he was certain it would be defeated in the courts. It is hard to say he is wrong, since no law limiting abortion before 20 weeks and viability has survived anywhere in the country.
If you get the sense the pro-life movement has no viable legal strategy to end abortion, you are not alone. The pro-life movement seems to have no answer to state and federal courts allowing blue states to expand abortion and preventing red states from limiting it even in the smallest ways. Many pro-life people seem to accept what nearly everyone believes: judicial supremacy is the way of things.
Too many people today believe that the Supreme Court and the judicial branch reign supreme over all other branches of government and the people of this country. Under the notion of judicial supremacy, the Supreme Court has the final say on all laws, and every other branch of government is bound by its general interpretation of the Constitution.
This leads to a fundamental question of our regime: who rules? Put another way, who is sovereign here? Are the people the sovereign rulers of this nation? Do we the people govern through the rule of law? Or do courts rule us? Is government sovereign and are the people merely its subjects?
Roe v. Wade Subverted Law Itself
The Supreme Court has put us in a predicament. In accepting the flawed precedent of Roe v. Wade over the laws of our various states for 46 years, they have declared they rule. In accepting the premise that words clearly not in the Constitution, namely a “woman’s right” to choose to kill her baby, are in the fundamental law, they undermine the rule of law.
When words do not matter, why have laws at all? In accepting that men are able to determine when a person does or does not have the natural right to life, the Supreme Court has undermined all natural rights. And the longer this persists, the greater our predicament becomes.
Pro-life people and those who believe in self-government are left with poor options. Either they can continue to wait for the Supreme Court to overturn Roe v. Wade and sweep away 46 years of precedent, or they can attempt to make abortion a real political issue, not a legal question (what might once have been called a political question). This would be to challenge the dogma of judicial supremacy.
Forcing a constitutional crisis will make abortion a political issue. A constitutional crisis is not a good thing, for its outcome is always uncertain. Yet if pro-life majorities in the states are willing to force the issue and declare that the people are truly sovereign, the pro-life movement can begin to make substantive change and start outlawing abortion locally, and, in time, everywhere.
This may seem like a radical view because it goes against a conventional opinion that has reigned over the public for decades, namely, that the Supreme Court is the supreme and only authority on the Constitution. So a long explanation is in order.
Judicial Review Is Not Judicial Supremacy
Judicial supremacy is a false doctrine born of twisting the sound doctrine of judicial review. Judicial review is the idea that in the course of judging cases and controversies, laws will inevitably come into conflict, so in those cases judges must review what the higher law, the Constitution, says.
As stated in Marbury v. Madison, “it is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.” Advocates of judicial supremacy emphasize Chief Justice John Marshall’s first sentences. We ought to look more closely at the second and the words “particular cases.”
Think how the law works. First a law must be made and written down. Second, it must be enacted and enforced. Lastly, when a citizen is in conflict with the law, his case must be adjudicated and decided. The law flows from legislation to execution to judgment.
Laws begin broad, general, and written in the abstract. They are executed more narrowly within the constraints of the real world, but still broadly in that they apply to everyone fairly. Finally, they are adjudicated most narrowly in specific cases and controversies. In this final step, two specific parties stand before judge and jury each pleading his case, and the court rules by applying the law to their circumstances.
From this we get the three powers of government: legislative, executive, and judicial. We separate them specifically so no one branch is above the law. To preserve the separation of powers, we have checks and balances so no one branch can usurp the powers of another or become stronger than the rest, thus putting itself in control of the law. If one branch could do so then it would be said to rule, not the law. This is the “very definition of tyranny.”
So what is judicial supremacy if not the rule of judges instead of the law? Each “co-ordinate branch” must be “equally independent in the sphere of action assigned to them” and must “decide what laws are constitutional” for itself. Anything else, including judicial supremacy, “would place us under the despotism of an oligarchy.”
Do Courts ‘Strike Down’ or Write Law?
Most lawyers and judges today believe courts get the final say on what laws are allowed and what are not, so when a court rules a law is unconstitutional they “strike it down.” In reality, when a court rules, not one iota of how the law is written changes in the law books. Nothing is “struck down.” A court may say a law is unconstitutional in all other circumstances, but these words have no more power than what the other branches allow.
You might have seen a judge’s ruling referred to as “the law of the land.” This does not mean courts write laws. The decision of a court is law, but it is limited only to the particular case, and the two parties involved. Everything else is precedent or dicta. The court’s power is limited to judgment in particular cases and controversies, and while in some sense more final than either of the other two branches’ role, it is the most constrained.
This is precisely the argument in Federalist 78, in which Alexander Hamilton defends the Constitution against claims it will lead to judicial supremacy. “The judiciary,” he says, “from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”
It “may truly be said to have neither FORCE nor WILL, but merely judgment [my emphasis].” This might explain why later, when Hamilton acknowledges judicial review, he is not concerned with it becoming judicial supremacy.
What About Precedent?
Courts are sometimes said to make “the law of the land” through the power of precedent, but that again, is a perversion of a sound doctrine. Court precedent is not law, and the power of stare decisis is limited to how much other judges and the other branches of government choose to honor it.
Lower courts are bound by the law, not by the precedent set by higher courts. Higher courts cannot tell lower courts how to rule; higher courts only pull cases to their level or tell lower courts to correct some procedural consideration. At the end of the day, each judge is independent, sits in judgment alone, and stands before God and the people for his ruling according to the law.
As Abraham Lincoln, a lawyer, said, “Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.”
There is good reason for precedent to be treated as binding. It leads to uniform enforcement of the laws across time and space. Likewise, it avoids unnecessary and costly legal battles that will obviously be decided in a particular way because they are similar enough to previous cases. Honoring previous court decisions also promotes a reverence for the law insofar as reverence for the courts and government is the same thing. These points—uniform enforcement, efficiency, and reverence for the laws—are all essential parts of the rule of law.
Still, precedent is not law. If it were, no court could ever overturn precedent, and the courts do so regularly. There are times when it should be ignored, for the sake of the rule of law. On this Lincoln offers more advice:
If [an] important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.
Lincoln’s conclusion is the most important part. He says, if “we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country [my emphasis].”
In the end, free government cannot include the dogma of judicial supremacy. Courts are the final say on what the law is only in individual cases and controversies. Judges can ignore precedent, and the other branches of government do not need to act as though laws are “struck down.” Furthermore, government can ignore judges who presume to rule by issuing sweeping orders as if they make law or can unmake law.
What Can be Done?
If people choose the hard and dangerous path of forcing the issue, they should know what is ahead of them. There are two ways: one is between branches of state governments, and one is an issue between states and the federal government. Still, there are options.
First, governors can simply enforce the laws still on the books, regardless of precedent or an overreaching state court ruling. This is hard because it requires compliant executive agents or the ability to fire those who side with the courts over their elected superiors. This will also lead to defeats in court cases and cost taxpayer money.
But this would not be meaningless. At the very least, this way restores the idea that only legislatures can unmake laws and governors are bound to enforce the laws as written.
Absent a law stating when life begins, if a governor wants to go further, she can order her subordinate agents to understand that life begins at a heartbeat (or even conception) for the sake of enforcing the laws. The executive branch is a coequal branch of government, and its agents must interpret the fundamental law in the course of their duties. The law everywhere already says we cannot kill individuals except in self-defense or after a trial.
This too comes at some risk. It requires willing subordinates. Likewise, if a governor acts contrary to the will of a legislature, she might be impeached. The fact she can be impeached is good, for it shows the people own their government. Forcing the issue is still republican if the people (or their representatives) as sovereigns can disagree with the governor and not re-elect her or even impeach her.
If a state has a pro-life majority resulting in both a pro-life governor and a pro-life legislature, however, there are more options. Legislatures can support the actions of their governors by passing the law again or a resolution confirming the interpretation of the law.
If the law limits or abolishes abortion, each woman who wants to have an illegal abortion would then have to plead her case to a judge, and in each case the judge would have to allow it. The blood of each murdered baby would be on the head of that judge, and not the people of that state.
If the law is regulatory in nature, say requiring some certification for abortion providers, executive agents would have to be willing to enforce the law as written regardless of what the courts say until such laws are actually removed by a legislature. This would be a constitutional crisis, but it would be just.
Impeaching, recalling, or removing state judges who refuse to accept the laws as written would resolve such a crisis legally. Again, this is a republican solution. Most judges serve for life during good behavior. Judicial tyranny is not good behavior. Checks exist for this purpose: to stop a branch from becoming tyrannical.
But all of this only solves state internal problems. It gets complicated when federal courts get involved, and they will get involved. Still, there are options.
If a federal judge presumes to “strike down” a state law duly passed and supported by the people, states could ignore rulings outside of how each applies to the specific plaintiffs of the case. If it is a criminal law limiting or ending abortion, the blood of each murdered baby allowed would be on a federal judge’s head.
If it is a regulatory law, states could ignore it. Perhaps the federal government will send in troops to enforce the ruling or agents to arrest leaders, but I doubt it, especially with President Trump in office. More likely, especially if several states follow suit, this will make abortion a true political question that no court can answer.
Making Abortion a Political Question Again
That is key: abortion will become a political question, something courts cannot answer. Political questions point to the sovereignty of the people, not the rule of unaccountable courts.
All of this depends on a spirited electorate who stand up for self-government. This is not as hard as one might think. The pro-life movement has significant resources that can be used in this. In red states, pro-life people already win elections. And not everyone must be convinced, just a brave few to lead the way. Pro-life people supposedly already control some states.
The pro-life movement could create new advocacy organizations to call out the stragglers or those pro-life representatives, legislators, and governors who are too scared. They can find them and shame them so that the people vote them out. This won’t require a massive change in opinion; it will require a faith they can do it and embracing the spirit many already have.
This, of course, would not be the preferred strategy, and pro-lifers should be careful in considering it. But every day spent waiting for enough pro-life judges willing to buck precedent means more precedent against them. Worse, the longer judicial tyranny stands, the more we lose our sense of self-government. As Thomas Jefferson described in Notes on the State of Virginia, Query XVIII: Manners, the longer tyranny persists in our midst, the weaker we become.
There is a danger in it, to be sure. Leftists could use similar tactics to make blue states bluer or to try to remove judges they don’t like in other states. But blue states are already getting bluer and everywhere progressivism is on the march. Meanwhile red states are not as red as the people there want. Conservatives, republicans, and pro-life people can stand their ground and push back.
The greatest danger in all of this is that certain red states will find a way to restore sanity to their laws and assert their rights as free men to govern themselves, and the courts of the federal government will try to stop them. In this case, we will have a serious constitutional crisis, and the rest of the federal government will be forced to side with the Supreme Court or the states. Then the best case is that the legislative and executive branches side with the states or stay out of it, making the federal courts look powerless.
Some will think challenging judicial supremacy will lead to anarchy and point toward Lincoln’s advice to be patient and kind and to avoid the power of the mob. But unlike 1838, when Lincoln gave his Lyceum speech, our problem is not mob rule and general lawlessness. It is lawlessness by judges and a spiritless government disconnected from the will of the people.
Unlike 1842, when Lincoln gave his Temperance Address, our problem is not too much spiritedness by the people and too much moralizing. It is a lack of spirit by those who have any morals at all.
Yes, this might lead to a crisis. Are we not already in a crisis? Our founders once wrote “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty” to correct the problem. If four-and-a-half decades of judicial tyranny is not a long train of abuses, if 60 million babies murdered is not already a constitutional crisis, I don’t know what is.
Either we accept the pernicious lie that a “woman’s right” to murder her baby is hidden in our Constitution, or we don’t. Either the courts rule us, or they don’t. The pro-life clause is the cause of self-government. If abortion is unjust, perhaps we ought to consider our options.