Publius-Huldah's Blog

Understanding the Constitution

How States can Man-up and Stop Abortion

By Publius Huldah

If the American People [and American lawyers] had been properly educated, they would know that our federal Constitution created a federal government of enumerated powers only; and that most of the powers delegated to Congress over the Country at Large are listed at Art. I, §8, clauses 1-16, US Constitution.

“Abortion” is not listed among the enumerated powers. Therefore, Congress has no power to make any laws about abortion for the Country at Large.1 And since “abortion” isn’t “expressly contained” in the Constitution, it doesn’t “arise under” the Constitution; and since state laws restricting abortion don’t fit within any of the other categories of cases the federal courts are authorized by Art. III, §2, cl. 1 to hear, the federal courts also have no power over this issue.

So from the beginning of our Constitutional Republic until 1973, everyone understood that abortion is a State matter. Accordingly, many State Legislatures enacted statutes restricting abortion within their borders.

But in 1973, the US Supreme Court issued its opinion in Roe v. Wade and made the absurd claim that Section 1 of the 14th Amendment contains a “right” to abortion. In Why Supreme Court opinions are not the ‘Law of the Land,’ and how to put federal judges in their place, I showed why the Supreme Court’s opinion in Roe is unconstitutional.

But Americans have long been conditioned to believe that the Constitution means whatever the Supreme Court says it means.2 Accordingly, for close to 50 years, American lawyers and federal judges have mindlessly chanted the absurd refrain that “Roe v. Wade is the Law of the Land”; State governments slavishly submitted; and 60 million babies died.

So who has the lawful authority to stop abortion?

1. Congress has constitutional authority to ban abortion in federal enclaves and military hospitals

Over the federal enclaves, Congress has constitutional authority to ban abortion: Pursuant to Article I, §8, next to last clause, Congress is granted “exclusive Legislation” over the District of Columbia, military bases, dock-Yards, and other places purchased with the consent of the State Legislatures (to carry out the enumerated powers).3 Article I, §8, cl.14 grants to Congress the power to make Rules for the government and regulation of the Military Forces. Accordingly, for the specific geographical areas described at Article I, §8, next to last clause, and in US military hospitals everywhere, Congress has the power to make laws banning abortion.

2. But federal courts have no constitutional authority over abortion

Article III, §2, cl. 1 lists the ten categories of cases federal courts have authority to hear. They may hear only cases:

♦“Arising under” the Constitution, or the Laws of the United States, or Treaties made under the Authority of the United States [“federal question” jurisdiction];

♦Affecting Ambassadors, other public Ministers & Consuls; cases of admiralty & maritime Jurisdiction; or cases in which the U.S. is a Party [“status of the parties” jurisdiction];

♦Between two or more States; between a State & Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States; and between a State (or Citizens thereof) & foreign States, Citizens or Subjects [“diversity” jurisdiction].4

These are the only cases federal courts have authority to hear. Alexander Hamilton wrote in Federalist No. 83 (8th para):

“…the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority.” [boldface added]

Obviously, State laws restricting abortion don’t fall within “status of the parties” or “diversity” jurisdiction; and federal courts haven’t claimed jurisdiction on those grounds. Instead, they have asserted that abortion cases “arise under” the US Constitution!

But in Federalist No. 80 (2nd para), Hamilton states that cases “arising under the Constitution” concern

“…the execution of the provisions expressly contained in the articles of Union [the US Constitution]…” 5 [boldface added]

Obviously, “abortion” is not “expressly contained” in the Constitution. So it doesn’t “arise under” the Constitution. In Roe v. Wade, the Supreme Court had to redefine the word, “liberty”, which appears in §1 of the 14th Amendment, in order to claim that “abortion” “arises under” the Constitution.

Section 1 of the 14th Amendment says:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [boldface added] 6

Do you see where it says that pregnant women have the “right” to abortion? It isn’t there! So this is what the Supreme Court did in Roe v. Wade to legalize killing babies: They said “liberty” means “privacy” and “privacy” means state laws banning abortion are unconstitutional. And American lawyers and judges have slavishly gone along with this evil absurdity ever since!

3. States must reclaim their traditionally recognized reserved power to restrict abortion!

Since “abortion” is a power reserved by the States or the People, State Legislatures should reenact State Statutes restricting abortion.

When a lawsuit is filed in Federal District Court alleging that the State Statute violates the US Constitution, the State Attorney General should file a motion in the Court to dismiss for lack of subject matter jurisdiction. He should point out that the Court has no constitutional authority to hear the case; that Roe v. Wade is void for lack of subject matter jurisdiction; that “abortion” is one of the many powers reserved by the States; and that the State Legislature properly exercised its retained sovereign power when it re-enacted the Statue restricting abortion.

The State Attorney General should also advise the Court that if the Court denies the Motion to Dismiss, the State will not participate in the litigation and will not submit to any pretended Orders or Judgments issued by the Court.

Now! Here is an interesting fact which everyone would already know if they had had a proper education in civics: Federal courts have no power to enforce their own Judgments and Orders. They must depend on the Executive Branch of the federal government to enforce their Judgments and Orders.7

Since President Trump has proclaimed his opposition to abortion, who believes that he would send in the National Guard to force the State to allow physicians to kill more babies within the State? Please understand: An opinion or ruling from a federal court means nothing unless the Executive Branch chooses to enforce it.8 THIS IS THE EXECUTIVE BRANCH’S “CHECK” ON THE JUDICIAL BRANCH! If the President, in the exercise of his independent judgment, thinks that an Order or Judgment of a federal court is unconstitutional, it is his duty imposed by his Oath of Office 9 to refuse to enforce it.

4. The modern day approach to dealing with absurd Supreme Court Opinions

But most pro-life lawyers will tell you we should proceed as follows: That we need to get a number of States to pass “heartbeat laws”. Pro-abortion forces will then file lawsuits in federal district courts alleging that the heartbeat laws violate Roe v. Wade and are “unconstitutional”. Most States will lose in the federal district courts. But they can appeal to one of the 13 US Circuit Courts of Appeal. Most of the States will also lose in the Circuit Court. But if just one Circuit Court rules in favor of the heartbeat law, then there will be “conflict” among the Circuits and the US Supreme Court is likely to hear the issue. This will give the US Supreme Court the opportunity [years from now] to revisit Roe v. Wade, and they might overrule it!

But I suggest, dear Reader, that we must purge our thinking of the assumption that we can’t have a moral and constitutional government unless Five Judges on the Supreme Court say we can have it. Since it is clear that federal courts have no constitutional authority over abortion, why do we go along with the pretense that they do? Why not just man-up and tell them, “You have no jurisdiction over this issue”?

Our Framers would be proud of you.

Endnotes:

1 Accordingly, the federal Heartbeat Bill and the Pain-Capable Unborn Child Protection Act, to the extent they purport to apply outside federal enclaves and military hospitals, are unconstitutional as outside the scope of powers delegated to Congress over the Country at Large.

2 The Supreme Court was created by Art. III, §1, US Constitution, and is completely subject to its terms. As a mere “creature”, it may not re-write the document under which it holds its existence.

3 In Federalist No. 43 at 2., James Madison explains why Congress must have complete lawmaking authority over the District of Columbia and the federal enclaves.

4 The 11th Amendment reduced the jurisdiction of federal courts by taking from them the power to hear cases filed by a Citizen of one State against another State.

5 Federalist No. 80 (3rd & 13th paras) illustrates what “arising under the Constitution” means: Hamilton points to the restrictions on the power of the States listed at Art. I, §10 and shows that if a State exercises any of those powers, and the fed. gov’t sues the State, the federal courts have authority to hear the case.

6 “Privileges and immunities” and “due process” are ancient Principles of English Jurisprudence well-known to earlier generations of American lawyers. “Equal protection” within §1 of the 14th Amd’t means that with respect to the rights recognized by these ancient Principles, States were now required to treat black people the same as white people. See Raoul Berger, Government by Judiciary The Transformation of the Fourteenth Amendment.

7 In Federalist No. 78 (6th para), Hamilton shows why federal courts have no power to enforce their orders and judgments – they must rely on the Executive Branch to enforce them:

“… the judiciary… will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” [caps are Hamilton’s; boldface added]

8 During the Eisenhower administration, a federal court ordered the State of Arkansas to desegregate their public schools. But the Governor of Arkansas refused to comply with the federal court orders. So President Eisenhower sent in the National Guard to force Arkansas to admit black students to a public school. See this archived article from the New York Times.

Here, Eisenhower chose to enforce the Court’s Order. But if he had decided that he would NOT enforce it, the schools would have remained segregated. Federal courts are dependent on the Executive Branch of the fed. gov’t to enforce their Orders! This is what Hamilton is talking about in Federalist No. 78.

9 The President’s Oath is to “…preserve, protect and defend the Constitution of the United States” (Art. II, §1, last clause). It is not to obey the Judicial Branch of the fed. gov’t.

Jefferson’s letter of September 28, 1820 to William Charles Jarvis may be read HERE at page 161.  The Works of Thomas Jefferson, ed. Paul Leicester Ford, Vol. XII.

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June 30, 2019 - Posted by | 14th Amendment, Abortion, Alabama Heartbeat law, Article III, Sec. 2, Enumerated Powers of Federal Courts, Federalist Paper No. 78, Federalist Paper No. 80, Federalist Paper No. 83, Judicial Supremacy, Roe v. Wade | , , , , , , , , , , , , ,

9 Comments »

  1. Hmmm. I wonder. What if the State of New York passed a law that all people over the age of 70 would be put to death? If New York passed the law, who would have the authority to over rule or interven?

    Liked by 1 person

    Comment by Michael | July 12, 2019 | Reply

    • Some would say that the US Supreme Court (which insists that pregnant women can have their babies killed) have or should have the power to overturn such a New York State law. [I assume you are aware that babies are now being killed even after they are born.]

      But I ask you: Can you point to that provision in the US Constitution which delegates to any Branch of the federal government the power to overturn such a New York State law?

      And how can you point to Sec. 1 of the 14th Amendment at authority to overturn the New York law when the US Supreme Court has already insisted that Sec. 1 means that people can kill babies? I expect the Supreme Court would be more likely to rule that Sec. 1 authorizes States to kill old people (and the terminally ill, the handicapped, the stupid, etc.) than they would be to rule that they can’t.

      I trust you are aware that under socialized medicine, governments DO decide that the old, the terminally ill, the handicapped, the “defective”, etc. should be put to death. This is already being done in places such as Holland and, I hear, in the United States. the thinking is that these old people in the State run nursing homes are drains on the resources of the State.

      Oh, socialism is wonderful, isn’t it? Peace and love and the brotherhood of man.

      Like

      Comment by Publius Huldah | July 13, 2019 | Reply

  2. In Langdell’s, Thayer’s and Littlefield’s treatises in 1899 (see Harvard Law Review) the meaning of the term “United States” as used in the 14th Amendment, was determined to mean “The United States of America” which is its original meaning ie. “We the People of the United States…”. Incidentally, the Supreme Court used Langdell’s, Thayer’s and Littlefield’s three definitions of “United States” in the case of Allison v. Evatt in 1940.

    An analysis of the phrase ‘…born or naturalized…’ includes the lawful Constitutional process of Naturalization upon the immigrant fulfilling statutory requirements. The term ‘born’ is coupled with the term “naturalized’ and must also have a lawful Constitutional nexus. Therefore, the words ‘born’ and ‘naturalized’ are subsumed under ‘citizen of the United States’. The only way this can happen is for the father or mother to be a citizen of the United States of America for then this human being, perhaps just conceived, becomes the ‘person’ mentioned at the start of the first sentence and subsequently ‘…subject to the jurisdiction thereof…’. This exchange of ‘person-hood’ does not began at birth but at conception.

    Person and human being are not synonymous. A human being may have several ‘person-hoods’ such father, brother, child, doctor, lawyer etc. but not all persons are human beings. A person may be a corporation which is not a live, breathing mammal, but only an imaginary entity conjured in the minds of man to serve man. The ‘…persons born…’ addressed in the 14th Amendment can only be human beings.

    The second sentence of the 14th Amendment is very direct in that it states clearly; “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The words ‘…any person…” in the second sentence includes the human being in any stage of development.

    How many John Jones, Mary Smiths, Albert Einsteins, George Washington Carvers etc. have been deprived of life since Roe v. Wade?

    The State charges the murderer of a pregnant woman with two counts of murder, one for the woman and one for the fetus, yet allows the murder of the unborn without ‘due process of law’.

    Where is justice for the unborn? Is it denied because he or she cannot speak? I, for one, will speak out for justice under our Constitution for those born and those yet to be born.

    Thank you, Publius Huldah for championing the cause.

    This is my considered opinion.

    Liked by 1 person

    Comment by Doug Smith | July 1, 2019 | Reply

    • And peoples’ opinions about what our Constitution means are relevant because….?

      I say our task is to look for the objective meaning of the text.

      Like

      Comment by Publius Huldah | July 3, 2019 | Reply

  3. THANK YOU HULDAH ! RE THE US CONSTITUTION, A KEY FEATURE OF THE FOUNDERS’ INSPIRED INTENT IS – IF A POWER ISN’T THERE, IT ISN’T THERE, AND IS RETAINED BY THE SOVEREIGN PEOPLE.

    Bob Webster LD57 PG, UT. 84062

    Like

    Comment by websterbob801 | June 30, 2019 | Reply

    • Right! Undelegated powers are retained by the States or the People. Yet that concept is so difficult for others to understand! They have been so brainwashed to believe that the federal gov’t can do whatever they want to do that they can’t comprehend that the fed gov’t’s powers are “few and defined”. All Americans over the age of 6 should be able to recite the enumerated powers by heart!

      Liked by 1 person

      Comment by Publius Huldah | June 30, 2019 | Reply

  4. Once again, my friend hits a home run. You are a true champion of liberty. Thank you for sharing a wealth of information rivalled by none. May God safeguard and protect you as you publish the word of truth. and may God continue to bless you.

    Stephen Lawson Stephen Lawson & Assoc., LLC 803-216-5130 http://www.stephenleelawson.com

    On Sun, Jun 30, 2019 at 11:40 AM Publius-Huldah’s Blog wrote:

    > Publius Huldah posted: “By Publius Huldah If the American People [and > American lawyers] had been properly educated, they would know that our > federal Constitution created a federal government of enumerated powers > only; and that most of the powers delegated to Congress over the” >

    Like

    Comment by Stephen Lawson | June 30, 2019 | Reply

  5. The beautiful clarity and scholarship makes this one of your best analyses. Thanks very much. PH. I will share it on facebook. BTW, i have often said that dealing with the constitutionality aspect in this matter is far easier than dealing with the moral and religious questions. And if we cannot resolve the less challenging constitutional question, which should be a slam dunk, then what reasonable hope do we have of resolving the other questions. Would you agree? But, you’re right. The States must simply say NO, a most improbable outcome. They seem to revel in their vassalage and enslavement to fed handouts.

    Like

    Comment by jim delaney | June 30, 2019 | Reply

    • What I have written is unthinkable to most American lawyers – it goes against everything they have been taught to believe. Yet, as you clearly see, what I’ve written is obvious & self-evident.

      It’s absurd on its face to say that the supreme court [which is a mere CREATURE of the Constitutional compact the States made with each other when they ratified the Constitution] is the final judge of what it means – and that they may properly dictate to the States [who created the Supreme Court when they ratified the Constitution!

      I learned from Ayn Rand while I was in my teens that one must never blindly accept premises dictated to one by others. “Examine your premises!”, she said. If other lawyers would do the same, it sure would help dig us out of the mess we are in. But the conditioning seems to have taken deep root. Also, when one bucks the prevailing dogma of the time, it can get unpleasant! So it’s easier to stay with the majority and see how they go…..

      Liked by 1 person

      Comment by Publius Huldah | June 30, 2019 | Reply


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