We Should Have Defied Roe v. Wade All Along

No court, or even duly-passed law, is the ultimate authority.

by Brother John

The Supreme Court leak has put the nation on pins and needles again. This time, we await its Dobbs v. Jackson opinion ever since someone leaked Justice Sam Alito's draft overturn of Roe v. Wade:

  1. Will the majority hold firm, or will one or more justice succumb to pressure?
  2. Will the Left incite someone to murder or permanently incapacitate one or more conservative justices, turning a 5-4 overturn to something else? And leaving more vacancies for President Biden to fill?
  3. Will Congress pack the Court?

None of this uncertainty should have been necessary. No one who respects the Constitution should have ever thought that Roe v. Wade is settled law, much less allowed millions of unborn children to be slaughtered under color of law.

Article 6 Paragraph 3 of the Constitution mandates that all officials from President to notary public swear to uphold it. As soon as Roe v. Wade was handed down, we should have studied how to slice it to ribbons, flooded our State capitals with petitions and articulate foot soldiers, and strategically backed candidates to replace Roe's legislative and executive supporters - a take-no-prisoners approach to compel our state legislatures to refuse to comply with it.

Finally, and perhaps most important, we should have heard Roe v. Wade imprecated from our pulpits and call down God's wrath on those murderers and covenant-breakers who imposed it on us.

As the French Enlightenment philosopher Voltaire said: "Écrasez l Infâme (Crush the infamous thing)."

Appeals to a woman's constitutional right to choose to kill her baby should have been dismissed as ignorant chatter. Likewise, any attorney's pondifications on judicial review stare decisis. We should have known how to assure our state representatives that being faithful to their oaths of office required them to ignore, not comply with, Roe v. Wade.

Christian activists are especially without excuse because we failed to understand what the Bible teaches about covenants. Many officials imitate George Washington and swear with their hand on the Bible. That Bible teaches that when an officeholder takes his Inaugural Oath, he makes a covenant with the American people. Parties to biblical covenants would kill an animal, cut it in half, and walk between the pieces to say - "If I break my covenant with you, may I, too, be cut in pieces." (Genesis 15:7-21. God commanded Abraham to slice apart five animals, not just one).

Moreover, ancient covenant makers knew that unburied dead animals were eaten by dogs or buzzards. Three separate Old Testament prophets in as many generations spoke consistently with this reality when they announced the immanent extermination of three covenant breaking dynasties:

"He who dies of (Jeroboam, Baasha, Ahab) the dogs shall eat, and he who dies in the open field the birds of the air shall eat" (1 Kings 14:11, 16:4, 21:24).

Jeremiah similarly warned those who broke their covenant to release their slaves:

"I will give all the people of the land who passed between the parts of the calf -I will give them into the hand of their enemies and into the hand of those who seek their life. Their dead bodies shall be for meat for the birds of the heaven and the beasts of the earth." (Jeremiah 34:18-20)

We should have been warning our legislators for fifty years that if they supported Roe they deserved to die and be eaten as carrion. To paraphrase Isaiah 30:14, we should have been studying how to break Roe v. Wade in pieces like pottery, shattering it so ruthlessly that among its pieces not a fragment will be found for scooping water out of a cistern.

Écrasez lInfâme!

The abortion industry and its proponents have woven intricate lies repeated by government, the media, academia, and Hollywood. Our job is to expose those lies. As the Apostle Paul wrote: "We demolish arguments and every pretension that sets itself up against the knowledge of God, and we take captive every thought to make it obedient to Christ." (2 Cor. 10:5)

There are five easy lies to expose, and three that are more intricate:

Easy lie #1: "The U.S. Constitution empowers Courts to make law"

Really? The first sentence after the Preamble reads:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives (Article 1, Section 1, emphasis added). No court may make law. Its task according to Article 3 is to decide cases as current law requires.

Easy lie #2: Even if SCOTUS can't legislate, Congress has Constitutional power to make abortion law

Not so! The Constitution in Article 1, Section 8 delegated enumerated powers to Congress - they are limited, they can be counted, and abortion is not included. A passing freight train with 23 cars does not have 24, 29, or 36. The Federal Government keeps adding cars to the freight train, and Roe v. Wade is the worst! Moreover, the 10th Amendment slams the door on adding further powers to the Federal Government that are not enumerated:

The powers not delegated to the United States by the U.S. Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Let us be clear: The only lawful legislative powers delegated to Congress besides those in Article 1 Section 8 are 1) those specifically given elsewhere in the Constitution, and 2) whenever Constitutional Amendments specifically authorize Congress to pass legislation to enforce them.

Incidentally, if we insist that not only Roe but all laws, court opinions, and regulations that lack constitutional merit be nullified, we may succeed in taking back our Constitution in our generation. But that's another matter for another day.

Easy lie #3: "The U.S. Constitution empowers courts to overturn law"

I invite anyone to read Article 3 and show me where it gives courts that power. I said it once, and shall repeat for emphasis: Article 3 empowers courts to decide cases.

Easy lie #4: "Only the courts correct unconstitutional actions"

Let's know our history! The U.S. Constitution was ratified in 1788. Fifteen years later, the Supreme Court in Marbury v. Madison first exercised judicial review, overturning unconstitutional law. But five years prior, the Kentucky and Virginia Resolutions nullified the Alien and Sedition Acts of 1803 within their borders.

So historically the Supreme Court has had competition! And if they think were giving them hell, well, say with Harry Truman that we're just telling them the truth and they think its hell!

Now for the more complex lies.

Complex lie #1: "The unborn child is not legally a person" (Roe v. Wade)

Interestingly, Roe v. Wade itself admits it has an Achilles heel. It states if the unborn are "persons" under the 14th Amendment, the entire case "collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."   It went on to redefine ""person"" as not including the unborn.

But was there no law dictionary current in 1868, when the 14th Amendment was written? How did the Amendment framers define "person"? A Michigan Supreme Court judge told me that when he has a case involving words in a law written in 1922, he consults dictionaries current in 1922, to understand what the words meant in 1922. Bouvier's Law Dictionary, 1856 Edition defines "child", "foetus", and "person" such that the unborn are without question "persons."  

Moreover, Attorney Joshua Craddock forcefully argues in Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion? in the 2017 Harvard Journal of Law and Public Policy that the 14th Amendment writers deliberately included the unborn as persons. 

The seven justices who signed Roe v. Wade sinned not only against the God Who gave the unborn life, but also against the lawful Oath they took before Him by rewriting the 14th Amendment to deny unborn children equal protection under the law.

Complex lie #2: Judicial review, specifically Marbury v. Madison, legitimized the Supreme Court as the final interpreter of the U.S. Constitution

Like virtually everyone else, I was bamboozled into thinking that the U.S. Constitution gave the Supreme Court final interpretive authority. One day I decided to learn how the Constitution gives that authority. I didn't find it the first time I read Article 3, so I read it again, thinking I must have missed it. I kept rereading it until I came to the astounding conclusion:

It's not there! We've been "had"!

Where does this "final interpreter" idea come from, but from a misunderstanding of the Supreme Courts landmark Marbury v. Madison opinion of 1803. To our opponents, no doubt Marbury's most significant statement is:

It is emphatically the province and duty of the judicial department to say what the law is.

That is a sweeping claim, but it is not in the Constitution! But it is in the Supreme Court building, the first of six Supreme Court opinion quotes chiseled on stone behind an immense statue of a seated justice.

The Supreme Courts claim to be the final authority is not unlike the Pope's claim of ex cathedra, the power to speak infallibly when sitting in St. Peters chair. The pope claims this not because the Bible gave him that authority, but because a predecessor said so, and the rest of the Catholic Church genuflect before him the way the common wisdom does the Supreme Court. Both pope and Supreme Court get away with it because compliant people let them get away with it.

So we've allowed the Supreme Court to use Marbury v. Madison as an excuse to function as an unelected oligarchy, a super legislature. But how many of us have read the opinion? It is a fascinating document, especially when we read that "emphatically the province and duty of the judicial department" statement in context! For immediately thereafter, Marbury begins its grand finale  as we shall see, a powerful defense of constitutional supremacy. It concludes by admitting that the Constitution binds even the Supreme Court.

Its final words:

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.

The rule must be discharged. (emphasis added)

If not the Supreme Court, to whom does the U.S. Constitution authorize the thwarting of a government body that jumps Constitutional tracks? It doesn't. Remember: Marbury v. Madison admits that even the Supreme Court is "bound by that instrument" (the Constitution). Other bodies - the Kentucky and Virginia legislatures -  had nullified the Alien and Sedition Acts for its unconstitutionality five years before Marbury v. Madison reined in Congress for the same reason. It is the U.S. Constitution itself, not the Supreme Court, that defines those tracks, just as it is the Bible, not the pope, that defines correct doctrine.

The framers surely understood human nature too well to permanently entrust power equivalent to papal infallibility to any branch of government. We've heard about constitutional checks and balances. Is it not obvious that this is one of them?

But one may say "the Kentucky and Virginia Resolutions" nullified Acts of Congress but not a Supreme Court opinion. True enough. But the Maine and Massachusetts Legislatures did not wait for the Civil War and the Thirteenth Amendment to nullify the Supreme Court's horrible Dred Scott case in 1857.

When will our state legislators imitate those legislatures and nullify Roe?

Complex lie #3: Marbury v. Madison legitimized Roe v. Wade as an exercise of judicial review

No, we shall see that Marbury undermines Roe's legitimacy.

But first, a brief background: When the U.S. Constitution, Article III, Section 1 created the Supreme Court, it also authorized Congress to create inferior Federal Courts. Congress' Judiciary Act of 1789 did just that and gave the Supreme Court original jurisdiction to try cases of writs of mandamus issued to Federal office holders. The Court had a constitutional question to decide: Should it maintain that power granted by Congress even though Article 3 had not delegated it? Or should it surgically remove that power from the Judiciary Act, even though the Constitution had not delegated it the power of judicial review?

The Court unanimously decided the latter. It thereby became the third example after the Kentucky and Virginia legislatures separately reined in the unconstitutional Alien and Sedition Acts or 1798 by the Kentucky and Virginia Resolutions of that same year.

After reiterating that the Constitution did not warrant the Supreme Court to issue writs of mandamus to public officers, Marbury v. Madison says:

The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

Marbury concludes this argumentation with a decisiveness equal to what it had earlier said that it "emphatically" claimed was its "duty, "to say what the law is:

(A)n act of the legislature repugnant to the constitution is void.

Now let's reread these statements from Marbury, adding the words ""or court opinion"":

The question, whether an act (or court opinion), repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it&

(A)n act of the legislature (or court opinion) repugnant to the constitution is void.

Note that besides the Constitution, only Congress and treaties ratified by two-thirds of the Senate (not the courts) can make "the law of the land" (Article 1 Section 1, Article 6 Paragraph 2). And if an act "repugnant to the constitution is void", how can a similarly "repugnant" court opinion not be?

For Marbury continues (again with my additions):

It is a proposition too plain to be contested, that the constitution controls any legislative act (or court opinion) repugnant to it; or, that the legislature (courts) may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts (or court opinions), and like other acts (or court opinions), is alterable when the legislature (or court) shall please to alter it&

Justice Byron White in his dissent in Roe v. Wade agrees:

As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

It is high time the states insist on the obvious: Marbury, far from legitimizing Roe, actually delegitimized it in its own words: ""repugnant to the constitution"" and ended its decision by admitting that the High Court itself is "bound by that instrument", the U.S. Constitution.  

"What is to be done?"

We should have pushed our state legislatures fifty years ago to answer that question in two parts. First, by insisting on the obvious: Roe v. Wade, "as an exercise of raw judicial power", hijacked (stole) State power and is therefore, in Marbury'swords, "repugnant to the constitution" and therefore "void."

Second, our legislatures should have passed their own laws criminalizing abortion, writing into the laws the determination that they were not subject to judicial review on the basis of Roe or Casey..

I am reminded of a petty thief who grabbed a lady's handbag and started running. She immediately cried "Catch the SOB!" My brother chased and apprehended the pathetic loser, and then asked him politely if he would consider returning the handbag to that nice lady.

No, he didn't! You don't ask a thief to return stolen goods, you take them back with manly firmness, and that is what he did.

The States should have done precisely that back in January of 1973: Simply keep enforcing their State abortion laws and tell the Supreme Court to pound sand.

Had they done that, there would not have been more than 63 million unborn babies murdered under color of law.

We are at a crossroads, awaiting Their Majesties to decide Dobbs v. Jackson. If the Supreme Court overturns Roe, some will state the obvious: Roe was so dreadfully wrong, the Court should never again recognize such usurped magisterial power.

But who believes we'll act on the obvious? The unelected oligarchy will be chastened but remain essentially unchanged. It will still claim infallible, final interpretive authority over the Constitution, except when it, and it alone, changes its mind. The whole country will still be on pins and needles again and again in repeated charades to learn what "the law" will be, even though that should have been settled by Congress.

Can anyone read Article 3 and seriously tell me that's what the Constitutional framers intended?

And the biggest irony? Christians will be thanking God for the Supreme Court and for answering their prayers of fifty years duration. They will thank God because the Supreme Court thieves finally returned the stolen goods to the states. How many Christians will confess the sins of their fathers for not having moved to defang Roe v. Wade back in 1973?

I am reminded of the plague God sent when Israelite men fornicated with Midianite women (Numbers 25:1-13). Moses' instructions from God were simple: Execute the adulterers. Instead, the people held a prayer meeting. What was there to pray about? The prayer meeting couldn't stop a couple as they brazenly walked by in plain view and into the man's tent. Phinehas, Aaron's grandson, had enough, and turned the fornicating couple into shish kebab.

Talk about preachers knowing when to stop praying to take action! God publicly commended Phinehas by stopping the plague.

Christians have for 50 years been praying the thieves voluntarily return the stolen goods, instead of telling their legislators to take back the stolen power. Meanwhile, 63 million unborn babies have been slaughtered. A victory that should have been won 50 years ago is no victory.

I grew tired of seeing hundreds of thousands of pro-life foot soldiers descend in the January cold to protest Roe, but never told to go to their state legislatures and tell them to ignore it. With armies like that, the so-called "pro-life generation" should have won the war decades ago. President Lincoln had the good sense to replace Civil War commanders who didn't know how to win. Slowly, we are delegitimizing the "pro-life" strategists for having inexcusably lost 63 million babies in 50 years. It's about time!

Whatever the Supreme Court does with Roe, we must expose its nakedness with the same cold-blooded thoroughness the French showed their Nazi collaborators after the Germans fled. They shaved the women's heads and paraded them through the streets carrying signs saying, "I whored with the Bosch."

Ecrasez l'infame!

This article was reprinted from a different site. Commentary may be added.  Read other Scragged.com articles by Guest Editorial or other articles on Culture.
Reader Comments

Thank you; what an impressively comprehensive piece!
If only logic and the truth held any significance for more than half the population.....

June 28, 2022 2:20 PM


July 5, 2022 6:44 AM

Plus, we should tell Joe Biden to go pound sand since he has been trying codify Roe by not respecting the Court. He too took an oath to protect and defend the Constitution. He has no authority to tell the People what to say or not to say because saying abortion should be completely illegal is a First Amendment right because it is a free speech right.

October 23, 2023 6:56 PM
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