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The Unrepentant Traditionalist
January 21, 2010

Preborn Citizens' Rights Can be Guaranteed by a Constitutional Provision:
A Pro-life Manifesto: Part III

by Frank Creel

ARLINGTON, VA —In Parts I and II of A Pro-life Manifesto, we saw why the success of the pro-life movement is critical to America’s future, reviewed past mistakes, and outlined a new beginning. Now let us focus on the additional steps we need to take.

William J. Quirk has thoroughly established that Congress has virtually complete power over the appellate jurisdiction of the Supreme Court and unlimited authority over the federal judiciary. Congress could, if it wished, completely abolish the latter by statute. (Courts and Congress: America's Unwritten Constitution, Transaction Publishers, 2008.)

These powers reside in the language of Article III, Section 2 of the Constitution: “In all the other Cases (in which the Supreme Court does not have original jurisdiction; parenthesis added), the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Quirk’s contention is not some esoteric theory untested in American history. After the Civil War, a Southern newspaper editor wrote articles opposing Congress’s reconstruction statutes. When he was arrested under those very statutes, he appealed for habeas corpus to the Supreme Court. While his appeal was being heard, Congress removed the Court’s jurisdiction with its Article III, Section 2 authority. The Court subsequently acknowledged this authority unanimously, saying “the power to make exceptions to the appellate jurisdiction of this court is given by express words.”

The Norris-LaGuardia Act of 1932 removed the power of federal courts to issue injunctions in labor disputes. In the 1950s, a bill was introduced to remove the Court’s jurisdiction in civil liberties cases involving Communists, and in 1979 another bill to strip the Court of jurisdiction over school prayer. Both bills failed to pass, but no one questioned their constitutionality. One legal scholar commented, “You can’t challenge the constitutionality of a constitutional provision.”

Such bills are called “strippers.” With a simple majority in the House and Senate and a president willing to sign it, a stripper as worded below could obliterate the noxious constitutional presence of Roe v. Wade:

“1. In its decision of January 22, 1973 (Roe v. Wade, No. 70-18, 314 F. Supp) the Supreme Court determined that it did not need to determine the difficult question of when life begins. Because science now shows conclusively that it begins at the moment of conception and that the complete genetic composition of a new human being is then present, a human conceptus shall be defined for all purposes of federal appellate review as a ‘person’ within the language and meaning of the Fourteenth Amendment.

“2. The Court, accordingly, is directed, in accordance with its own holding in the cited decision that if ‘person’ were so defined, its findings would ‘collapse,’ to guide lower federal courts in how to deconstruct the primary holding and all its juridical and precedential consequences.

“3. The jurisdiction of the Court in all legal questions pertaining to the practice of abortion is hereby removed, with the exception that the Court shall continue to insure Fourteenth Amendment protections to all United States persons as defined in this statute.

“4. This statute is enacted with specific reference to Article III, Section 2 of the Constitution. Any effort by any public official exercising Article III authorities to challenge, undermine, or rule on the constitutionality of this statute shall be regarded as compromising that official’s ‘good Behavior’ as understood in Article III Section 1.”

In other words, any judge defying this enactment could be impeached and removed from office.

A stripper bill such as this has advantages and disadvantages. Enactment requires only a simple majority in both houses of Congress and a compliant president. This is far easier to accomplish than a constitutional amendment. The disadvantage is that, unless a popular pro-life majority is maintained, a subsequent Congress could restore the status quo ante by repealing the stripper.

It can be argued that the simple reversal of Roe v. Wade throws the issue back into the laps of the individual states and that many, many abortions would continue to be performed legally in various locations. However, the stripper bill as I have drafted it (no doubt the wording can be made even more precise by professional bill drafters) would leave the Supreme Court responsible for safeguarding Fourteenth Amendment rights, extended to include the rights of preborn citizens.

I, along with many other strict constructionists, am philosophically opposed to the constitutional smorgasbord set forth by the expansive reading of the Fourteenth Amendment. But I can swallow my scruples on that point if it means rescuing America from the scourge of abortion.

Tragically, the second Bush administration, which came to power largely on the strength of its pro-life pretensions, squandered its opportunity to have this historic victory. For four years, from 2002 to 2006, President Bush enjoyed clear Republican majorities in both houses. With a strong push, he could have consigned Roe v. Wade to history’s dustbin in the manner I describe above.

Thus, we can see clearly what a terrible mistake it was to align the pro-life movement so closely with Republican fortunes, and how absolutely necessary it is to build a new, pro-life party. In Part IV we will survey the changes required to bring a popular majority into our camp.

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The Unrepentant Traditionalist is copyright © 2009 by Frank Creel and the Fitzgerald Griffin Foundation. All rights reserved.

Frank Creel, Ph.D., a columnist and author, was an English teacher in the Peace Corps in Turkey. He is fluent in the Turkish language and in Arabic script.

See a complete biographical sketch.

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