Abortion and The Federalist Revisited
December 1, 1995
Scott Stripling agrees that (a) "Abortion is morally wrong," (b) "the fetus is a human being," and "as a person, the fetus has rights that are protected by the fifth and fourteenth amendments." How the Constitution can protect any rights of the unborn human being when it cannot protect that on which all others rest its natural right to live is a mystery which I leave "states’ rights" zealots to explain.
Stripling claims we have a "disagreement over means, not ends." Unfortunately we agree about neither. In Federalist No. 51, Publius writes:
Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secure against the violence of the stronger. [my emphasis]
The homicide of 1.5 million unborn human beings every year who are supposed to have rights protected by our Constitution is as blatant an injustice as any I can imagine. History affords no better example of the stronger using violence against the weaker. Unless words like "justice" have no meaning, who can deny that preventing such injustices was what Publius recommended in the new Constitution?
However, Stripling implies that the end justifies the means. Publius observes in No. 44 that "no axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included." Still, the federal government might usurp powers not given to it, as Stripling claims the Supreme Court did in Dred Scott and Roe. Where is the ultimate remedy? Publius continues: "[I]n the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers."
Abraham Lincoln followed Publius, arguing that the Republican party believed black slavery was a moral, social, and political wrong which Congress had the authority to forbid in U.S. territories, Taney’s Dred Scott decision notwithstanding. He announced that if elected, the Republicans would reverse the Court’s holding by passing new laws forbidding slavery in the territories. On June 12, 1862–long before the Civil War constitutional amendments–Lincoln’s Republican Congress did just that.
I propose the same solution to our national abortion crisis. That the unborn child’s natural right to life be recognized is indeed a "moral imperative," but certainly it must reflect the consent of the governed. It can be obtained through the persuasion of electoral debate. A political party as confident of its moral and constitutional bearings as Lincoln’s Republicans merely need campaign to pass ordinary laws under the fourteenth amendment enforcement authority recognizing the right of unborn human beings not to be aborted. Its election to Congress would register that consensus.
The Supreme Court has no ultimate authority to force Americans to accept repugnant constitutional policies. The people who "ordain[ed] and establish[ed]" our Constitution are the final authority. When an erroneous Court decision violates the fundamental natural rights of a whole class of persons, Congress should reverse the Court’s holding of policy (apart from the parties in the case). To shrink from that duty is to allow the Court to transform our self-governing republic of freedom into an instrument of anarchy.
Dennis Teti is Adjunct Professor of Political Science at Hillsdale College and Special Assistant at the U.S. Commission on Civil Rights. Opinions expressed are not necessarily those of these institutions.