Democrats Continue to Devolve the US into an Evil, Heartless, and Uncivilized Nation

 

ABORTION - late-term abortion

(Photo Credit: Robert Valencia)

by Diane Rufino, March 1, 2019

This past Monday, February 25, US Senate Democrats blocked a Republican bill – The BORN-ALIVE ABORTION SURVIVORS PROTECTION ACT – that would have threatened prison time for doctors who don’t attempt to save the lives of infants born alive during failed abortions.

Why are Democrats openly embracing infanticide? What demons do they have whispering in their ears? What devil sits on their shoulders? What evil master do they serve?

All prominent Democratic 2020 presidential hopefuls in the Senate voted down the measure, including Bernie Sanders of Vermont, Kamala Harris of California, Cory Booker of New Jersey, Kirsten Gillibrand of New York, Amy Klobuchar of Minnesota and Elizabeth Warren of Massachusetts. The final vote was 53-44 to end Democratic delaying tactics — seven votes short of the 60 needed.

Three Democrats joined Republicans to support the bill — Joe Manchin of West Virginia, Bob Casey of Pennsylvania and Doug Jones or Alabama. Three Republicans did not vote, apparently because of scheduling issues and plane flight delays — including Kevin Cramer of North Dakota, Lisa Murkowski of Alaska and Tim Scott of South Carolina (a HUGE proponent of Life).

The Born-Alive Abortion Survivors Protection Act would have required that “any health care practitioner present” at the time of a birth “exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child as a reasonably diligent and conscientious health care practitioner would render to any other child born alive at the same gestational age.”

To most people, it is a no-brainer that a doctor or other health-care professional should preserve the life and health of a newborn. Am I wrong to believe that the medical profession still adheres to the historic oath that dates back to Greek times, the Hippocratic Oath, which states that a doctor shall seek to preserve health and preserve life, to endeavor to do no harm?  The modern version of the oath includes this statement: “Above all, I must never play God.”

Ironically, one classical version of the Hippocratic Oath addresses abortion: “I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy.”

Last week, I watched the 2018 movie GOSNELL: The Trial of America’s Biggest Serial Killer with members of my Tea Party group. The movie chronicles the investigation by Philadelphia Police and the DEA of Kermit Gosnell, the infamous abortion doctor who operated an abortion clinic in Philadelphia, and his subsequent trial. Initially investigated for overprescribing OxyContin (oxycodone; an opioid derivative of heroin), a raid on his clinic uncovered horrors beyond description. He was charged with eight counts of murder, 24 felony counts of performing illegal abortions beyond the state of Pennsylvania’s 24-week time limit (“viability”), and 227 misdemeanor counts of violating the 24-hour informed consent law (patients must wait 24 hours after proper consultation by the clinic). The murder charges related to a woman who died following an abortion procedure, and seven newborns who were killed by having their spinal cords severed with scissors after being born alive during attempted abortions. Surprisingly, the defense was able to mount an extraordinary defense of Gosnell and his practices, including an admonition by the judge that nothing asserted in the courtroom would be allowed to contradict a woman’s abortion rights. Towards the end of the trial, the prosecution was able to locate a young girl (in her teens) who worked at the clinic and who happened to take pictures of the babies who had their spinal cords severed by Dr. Gosnell.  When asked on the stand why she took the pictures, the girl responded to the effect that the babies were so big and so perfect and they looked like they should have been welcomed into a family, with brothers and sisters. She thought there should have been some record, a picture, to acknowledge their existence. Those pictures were shown to the jury, and one by one, their hearts melted and they looked down or began to sob.  Why? Because they inherently connected with the humanity in a newborn and even in a full-term fetus. Dr. Gosnell had committed atrocities that shocked their conscience. My suspicion is that they may have been convinced by the defense to overlook the successful abortions of a full-term fetus, but to take that additional step with callousness and without regard to the life on the medical table in front of him, struggling to move and breathe, wanting to be warm and cradled and comforted and kissed and loved, and take its life was an act of pure evil.

Inherently, we value life and we act under the teachings of compassion and care that our religion has impressed on us, even at some point in our lives.

The sad and tragic thing about this law is that it even needed to be introduced at all.  Providing medical attention and care to a newborn, even if it is a product of a failed abortion attempt, is the natural, the right, the intuitive thing to do.  How can those who would want medical care for themselves have the right to decide to deny it to others?  A life is a life.  It’s not defined by number of years but by DNA and breath and a beating heart.  It’s defined by an instinct to survive and continue living.

After the vote, President Trump tweeted: “This will be remembered as one of the most shocking votes in the history of Congress. If there is one thing we should all agree on, it’s protecting the lives of innocent babies.”

Today the left uses the excuse that a baby inside the womb is the sole property and concern of the mother to justify its extermination. What will tomorrow’s excuse be?  Usefulness?  Competency?  Old age?

Here are my questions regarding this vote on this Born-Alive Abortion Survivors Protection Act and in fact, regarding the extreme position that Democrats/liberals/progressives take on abortion rights in general:

(1)  Why do Democrats/liberals/progressives believe that abortion rights are broad and extensive enough to encompass a right to make sure that the abortion is successful, to the point that it includes infanticide?  In other words, why do Democrats/liberals/progressives believe that abortion rights are broad and extensive enough to include the right to condemn a baby born alive to be killed? The one thing the Roe v. Wade opinion seems to be clear on is that as long as the unborn is still inside a woman’s womb, it is not a life for which the Constitution or our laws can provide protection. But once that unborn has actually been born, then, as the opinion supports, that baby is now a new “life.”

(2)  The Fourteenth Amendment reads: “Section 1. 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.”  According to the plain language of the Fourteenth Amendment, any baby born, even if it is the result of a failed abortion, is a citizen and therefore a person with recognized liberty rights. If that is the case, then any person who terminates that life after birth, again even if that baby has suffered from an attempted abortion and even if that baby was intended to be condemned by the mother, is guilty not only of murder, but of intentional, premediated murder.

(3)  Democrats/liberals/progressives believe what Roe v. Wade stands for – that as long as the unborn is inside a woman’s womb, she has complete control over its destiny.  But once it emerges from the womb, even if it is the result of a failed abortion, then don’t both parents (mother AND father) have parental rights to that newborn baby?  Our child support laws would suggest so.

(4)  And if that “unwanted” baby should emerge from the womb, even if it is the result of a failed abortion, then wouldn’t that newborn baby become the ward of the state?  That is, wouldn’t the government (society in general) have the right and duty to care for it?

(5)  If all of the above are true, then how could any member of Congress, taking an oath to the Constitution, vote against the Born-Alive Abortion Survivors Protection Act.

(6)  The proper approach by government would have been to legislatively define LIFE at some point during fetal development.  (See my article “RESOLUTION to Define LIFE Through Legislation”).

To echo President Trump’s words, this vote by the US Senate “will be remembered as one of the most shocking votes in the history of Congress. If there is one thing we should all agree on, it’s protecting the lives of innocent babies.”

 

References:

“Dems Block ‘Born Alive’ Bill to Provide Medical Care to Infants Who Survive Failed Abortions,” FOX News, February 27, 2019.  Referenced at:  http://www.fox10phoenix.com/news/us-world-news/dems-block-born-alive-bill-to-provide-medical-care-to-infants-who-survive-failed-abortions#/

Diane Rufino, “RESOLUTION to Define LIFE Through Legislation,” For Love of God and Country, February 24, 2019.  Referenced:  https://forloveofgodandcountry.com/2019/02/24/model-resolution-to-define-life-through-legislation/

(MODEL) RESOLUTION to Define “LIFE” Through Legislation

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by Diane Rufino, February 21, 2019

I wrote the following Model Bill in support of the various grassroots organizations I volunteer with, in support of the Pro-Life Movement, and in recognition of the incompetence of the US Supreme Court in deciding the Roe v. Wade (1973) case which recognized the broad right of a woman to an abortion.  Right now, according to Roe, the only thing preventing a woman from aborting her full-term unborn baby are any interests the state may choose to exercise in allowing the pregnancy to continue (after viability) and in the life of the unborn. Recently, several states have declined to exercise any “state interests” in a woman’s pregnancy so that she can have an abortion at any point in her pregnancy, including up until delivery. In other words, in these states, a woman’s right to an abortion is so broad that it includes the killing of her living unborn baby.  No other “fundamental right” recognized in our US Bill of Rights is without limitations (that is, limitations based on compelling state interests).

In no moral society can we accept the notion that a woman’s right to control her reproduction and fertility (ie, her right to an abortion) is broad enough to kill her baby, which is an independent life.

I shared this Model Bill with my state representatives in the North Carolina General Assembly, all of whom share my viewpoint. They are busy submitting various bills to limit abortions in the state but none have addressed the issue at the core of the abortion debate, which is that at some point a fetus biologically and morally becomes a living human being – a new life.  If the state legislature defines life to include an unborn baby (at a stage to be supported medically), then it has inherent, inalienable rights that the US Constitution, the North Carolina constitution, and our laws are bound to respect.

I hope other states will take this approach and pass common-sense legislation to define life so that the killing fields resulting from a woman’s all-too-expansive right to an abortion will end.

RESOLUTION To DEFINE “LIFE” THROUGH LEGISLATION

“Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people.”  [Justice Antonin Scalia, in an interview]

Whereas, the right to an abortion was articulated by the Supreme Court in 1973, in the infamous case, Roe v. Wade  which addressed a challenge to a Texas statue criminalizing abortion. Roe’s attorneys argued that women have a right to an abortion under her right to privacy, including her right to control her reproductive health and to determine when to reproduce. [Roe v. Wade, 410 U.S. 113 (1973)];

Whereas, the Court has recognized that a general right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. However, it cited cases that found ‘the roots of that right’ in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, as well as in the penumbras of the Bill of Rights. One such case was Griswold v Connecticut; (1965) which involved a challenge to a Connecticut criminal statute that prohibited married couples from using contraceptives and made their doctors liable for aiding and abetting; [Griswold v. Connecticut, 381 U.S. 479 (1965)];

Whereas, the Court concluded in Roe v. Wade that the inherent right of privacy (which the Court articulated in the case of Griswold v. Connecticut) was broad enough to include the right of a woman to control her fertility and her ability to reproduce (ie, to control what happens with and inside her womb). In other words, the Court concluded that a woman’s right to an abortion was a fundamental right;

Whereas, the Supreme Court in Roe concluded that a woman’s right to an abortion was not absolute. Rather it ‘must be considered against important state interests in regulation.’ Yet, it continued, the right of privacy could be limited only if the laws were ‘narrowly drawn to express only the legitimate state interests at stake’ (the test the Supreme Court uses to review laws that violate or burden a fundamental right, which is “Strict Scrutiny”). Because a woman’s right to an abortion was a fundamental right, only a compelling state interest could justify such an anti-abortion statute. And the Court found that there were indeed some compelling state interests, such as safeguarding health, in maintaining medical standards, and in protecting potential life. The question became at what point do the state interests come into play so as to justify the burden on the woman’s right to an abortion;

Whereas, the Supreme Court, “applying present medical knowledge,” determined that the state’s interest in the mother’s health became compelling at approximately the end of the first trimester. Until that point, women experienced less mortality from abortion than childbirth (ibid 163). After that time, a state could regulate the abortion procedure to protect maternal health, such as by requiring that abortion providers be qualified and facilities be appropriate. The state’s interest in potential life became ‘compelling’ at ‘viability’ (which is the point when a fetus has a chance of surviving outside the mother’s womb; medical community puts viability at 24 weeks). At that point, the state could even prevent abortion, except when it is necessary to preserve the life or health of the mother;

Whereas, in light of the above analysis, the Court articulated a “Trimester Framework” or “Trimester Approach” as a bright-line rule to guide the states. As explained above, the framework is essentially a legal balancing test that weighs the privacy interests of the mother against the interests of the state in order to explain when abortion rights were strongest. The “Trimester Framework” or “Trimester Approach” can be summed up as follows:

(i)     During the first trimester of pregnancy, when an abortion was considered a safer procedure than childbirth, the decision on whether to abort must be left exclusively to the mother and her attending physician. (Therefore, any state or federal regulation that interfered with the right to have an abortion would be presumptively unconstitutional).

(ii)     For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(iii)     For the stage subsequent to viability, the State may (if it chooses), in promoting its interest in the potentiality of human life, regulate, and even prevent, abortion except where it is necessary, subject to appropriate medical judgement, for the preservation of the life or health of the mother;

Whereas, while the Court noted that the government had legitimate interests in regulating abortion, it concentrated more intently on how an unwanted pregnancy affected a woman’s life. The Court identified a range of harm, including ‘specific and direct harm’ to her health, ‘a distressful life and future’ from additional children, ‘psychological harm’, health implications from caring for children, distress from bearing an unwanted child, financial stress, coercion from family, and the stigma of unwed motherhood. Consequently, the Court concluded, the right of privacy, ‘founded in the Fourteenth Amendment’s concept of personal liberty,’ was ‘broad enough to encompass a woman’s decision whether or not to terminate her pregnancy’;

Whereas, until the decision in Roe v Wade, women in the United States did not have a constitutional right to an abortion. Rather, each state had the ability to regulate abortion within its borders. The US Congress could not enact abortion legislation because the federal government lacked the constitutional authority to do so (it was not yet a recognized right);

Whereas, Roe v Wade reached the Supreme Court as part of a growing movement in the US to recognize and liberalize abortion law; arguments in favor of abortion rights centered on women’s equality, public health, overpopulation, sexual freedom, and feminism;

Whereas, the opinion in Roe was based upon what abortion advocates wanted women to be able to do, not what they believed women were truly capable of;

Whereas, the country soon found out what women were capable of, with respect to the unborn. They sought abortions to terminate the life of the unborn they either found too inconvenient to continue carrying or they didn’t want to care for when born;

Whereas, abortion rights have had certain horrific and unconscionable of unintended consequences, including the offending of our national conscience, alienating our country from the protection of God,  the suffering of clinic workers (what they are forced to witness), the suffering (psychologically and emotionally) of the women who abort their babies, and the death of countless innocent lives;

Whereas, the recent passage of “late-term abortion” laws in several states, removing state interests in preserving the pregnancy up until delivery, has shocked our national conscience and has caused society to renew its discussion and debate on abortion and what rights do women actually have or what rights they actually should have;

Whereas, the Court went out of its way not to refer to the unborn fetus as ‘a “person” because to do so would bring the unborn under the protection of the Fourteenth Amendment;

Whereas, the Court acknowledged that the Constitution provides no definition of “person” or “personhood” and then came to its own conclusion that “person’ was used in the Amendment in a way that suggested that it did not include the unborn – that it referred to someone outside the womb, able to walk around….”;

Whereas, the Court ignored historical precedent, especially at the time of the adoption of the Fourteenth Amendment, that “personhood” and “life” were considered synonymous; and that a fetus was considered a “life” or a “person” per the very wording of various state abortion statues (criminal statutes) at the time of “quickening” or earlier;

Whereas, in fact, when the Fourteenth Amendment was adopted in 1868, the individual states widely recognized children in utero as persons. Nearly every state had criminal laws proscribing abortion, and most of these statutes were classified among ‘offenses against the person.’ (it is clear that the word ‘person’ referred to the fetus”);

Whereas, at the time the Fourteenth Amendment was adopted, twenty‐three states and six territories referred to the fetus as a ‘child’ in their statutes proscribing abortion;

Whereas, at the time the Fourteenth Amendment was adopted, at least twenty‐eight jurisdictions labeled abortion as an ‘offense against the person’ or an equivalent criminal classification;

Whereas, at the time the Fourteenth Amendment was adopted, nine of the ratifying states explicitly valued the lives of the preborn and their pregnant mothers equally by providing the same range of punishment for killing either during the commission of an abortion;

Whereas, at the time the Fourteenth Amendment was adopted, ten states (nine of which had ratified the Fourteenth Amendment) considered abortion to be either manslaughter, assault with intent to murder, or murder (a murder or manslaughter charge legally requires the victim to be considered a “person”);

Whereas, the only plausible explanation for the state laws and policies above is that the legislatures considered the mother and child to be equal in their personhood;

Whereas, the adoption of strict anti‐abortion measures in the mid‐nineteenth century was the natural development of a long common‐law history proscribing abortion. Beginning in the mid‐thirteenth century, the common law codified abortion as homicide as soon as the child came to life (“quickening”; animation; when the mother could first feel fetal movement) and appeared recognizably human (formation), which occurred approximately 40 days after fertilization;

Whereas, although abortion performed before ‘quickening’ had been legal at the nation’s founding, the American Medical Association, starting in the 1850s, promoted the criminalization of abortion in all cases, except to save the mother’s life;

Whereas, even by the mid-nineteenth century, courts and states alike, were increasingly rejecting the “quickening” standard as scientifically obsolete and replacing it with “fertilization”;

Whereas, besides ignoring historical tradition, the Supreme Court further ignored its own Constitutional/Fourteenth Amendment jurisprudence (established by Snyder v. Massachusetts in 1934) in determining which fundamental rights are incorporated on the States through the Fourteenth Amendment’s Due Process Clause. The question the Court must ask is whether the asserted right “is so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and the Court is obligated to use the time period of the Amendment’s adoption to make that determination. [Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)];

Whereas, the fact that a majority of the States at the time of the Fourteenth Amendment, and especially those that ratified it, had restrictions on abortions for at least a century should have been strong indication to the Court that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” [Snyder v. Massachusetts, pg. 105 of the opinion];

Whereas, the very ‘fundamental’ right of privacy, on which the Court grounded the its abortion decision, was itself a court-created concept. [As the Court acknowledged, ‘The Constitution does not explicitly mention any right of privacy. . . .’];

Whereas, layman’s dictionaries at the time of the adoption of the Fourteenth Amendment treated the concepts of humanity and personhood interchangeably. (That is “life” = “pershonhood”);

Whereas, William Blackstone’s Commentaries on the Laws of England, a treatise that had profound influence on legal thinking and which was used in American law schools, was relied on by the Supreme Court, and continues to be cited even today in Supreme Court decisions (cited at least 10-12 times each year.) expressly recognized that personhood and the right to life existed before birth. He set forth a simple and clear legal standard:  “Where life can be shown to exist, legal personhood exists.” [Blackstone’s Commentaries];

Whereas, a look back through history shows that there were no laws to specifically protect the unborn prior to birth, and that makes sense in light of the generally-accepted definition of “personhood.” A pregnant woman was carrying a “life,” and hence she was carrying a new person;

Whereas, at the time the Fourteenth Amendment was adopted, Americans, state lawmakers, and government officials understood personhood to include the unborn, just as Blackstone defined it, and therefore a historical analysis shows that society in 1868 viewed personhood and life in much the same way that pro-lifers today view it;

Whereas, in his dissenting opinion in Roe v. Wade, Justice Byron White argued: “With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. 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.” [Roe v. Wade];

Whereas, Justice White continued in his dissenting opinion: “At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons – convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure. The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother….. The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs..” [Roe v. Wade];

Whereas, in his dissenting opinion in Roe, Justice William Rehnquist argued: “The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.  Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and ‘has remained substantially unchanged to the present time.’ There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.” [Roe v. Wade];;

Whereas, it is clear that the fundamental mis-conception at the heart of the Roe case was that a fetus can never be a “life” and hence could never come under the protection of the Fourteenth Amendment which speaks to rights of “persons.” In other words, the case was premised on an erroneous assumption;

Whereas, had the Supreme Court had looked at the “life” or the unborn/fetus as opposed to its “viability”; that is, if it had made the proper assumption that a fetus, at least at a certain point, becomes a living being, and hence a “life,” then the Constitution and our laws provide protection of that unborn, including observance of its fundamental rights;

Whereas, the Declaration of Independence professes: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”;

Whereas, the minute an individual is created and blessed with life, he or she is endowed with inalienable rights, including the right to Life. Moreover, government is instituted for the primary purpose of secure those rights. It makes no difference whether that individual is 15 years old, 40 years old, 10 years old, 1 month old, or 20 weeks old. The minute it became a living being, it is understood to be entitled to the most essential of all inalienable (those attaching to our very humanity) rights;

Whereas, had the Supreme Court made the proper assumption in Roe, that a fetus, at least at a certain point, becomes a living being, and hence a “life,” then that unborn would be considered a “person” for purposes of the Fourteenth Amendment, and would therefore be recognized as having inherent and fundamental rights of its own for which our Constitution must recognize and protect;

Whereas, the Fourteenth Amendment reads: “… 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’;

And whereas, had the Supreme Court recognized life and hence personhood in a fetus (again, at least at a certain point), then it’s analysis in Roe v. Wade would not have been “Woman’s Fundamental Right to an Abortion” vs. State Interest (if the state even wanted to exercise an interest) in preserving the life of the unborn” but rather the correct one which would have been “Woman’s Fundamental Right to an Abortion” vs. “The Unborn’s Right to Life”;

Whereas, once an unborn fetus is recognized as an independent life, a woman’s right to have an abortion will not be broad enough to include the termination of a pregnancy that contains a living fetus. In other words, a woman will no longer have the unfettered right to abort her unborn, kill it, or otherwise dispose of it;

Whereas, had “life” been defined by federal statute or state statute, then countless living unborn babies would not have had to be sacrificed at the alter of a woman’s broad right to an abortion.

THEREFORE, in consideration of all of the above, especially in light of the failings of the Roe Court to reconcile the asserted right of abortion with the US Constitution and Supreme Court jurisprudence,      the Coastal Carolina Taxpayers Association       strongly advises that the General Assembly pass legislation defining a fetus as a “life,” and hence a “person,” at a medically-appropriate point so that it can and will be respected as having fundamental rights and protected under the US Constitution, the North Carolina Constitution, and our laws.
References:

Diane Rufino, “Why Can’t Women be Both Pro-Choice and Pro-Life? It’s Possible With Common-Sense Limitations on Abortion,” For Love of God and Country Blog, February 1, 2019.  Referenced at:  https://forloveofgodandcountry.com/2019/02/01/why-cant-women-be-both-pro-choice-and-pro-life-its-possible-with-common-sense-limitations-on-abortions/

Revelations from Norma McCorvey (aka, Jane Roe) of Roe v. Wade –  https://www.liveaction.org/news/7-powerful-quotes-from-jane-roe-of-roe-v-wade/

Roe v. Wade  [410 U.S. 113 (1973)] full text of majority opinion –  https://caselaw.findlaw.com/us-supreme-court/410/113.html

Griswold v. Connecticut, 381 U.S. 479 (1965), summary –  https://www.oyez.org/cases/1964/496

Merle H Weiner, “Roe v. Wade Case (US),” Oxford Constitutional Law –  http://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e564    [Under an “originalist” approach, the Court would have had to determine what the word “persons” was understood to mean when the 14th Amendment was written and ratified. “Originalism” is often equated with “Textualism” (where judges look at the meaning of the words and intent at the time they were written)  A honest analysis would have looked not only at the definition of the term “persons” around the time of 1868, but also at society’s view of abortion at that time. In fact, for a claimed right to be covered by the 14th Amendment and hence free from government/state regulation, that right would have had to have been considered an essential liberty right at the time the Amendment was adopted. In other words, the Court should have asked two questions: “What did the term ‘persons’ mean back in 1868?”  And, “Was abortion considered a fundamental liberty right back in 1868?” [That is, the Court should have asked: Was the asserted right to an abortion “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)].

Justice William Rehnquist’s dissenting opinion in Roe v. Wade –  http://landmarkcases.c-span.org/pdf/Roe_Rehnquist_Dissent.pdf

Justice Byron White’s dissenting opinion in Roe v. Wade –  https://en.wikisource.org/wiki/Roe_v._Wade/Dissent_White

Joshua J. Craddick, Joshua J. Craddock, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?,” Harvard Journal of Law and Public Policy, Vol. 40, No. 2 (2017).  Referenced at:  file:///C:/Users/diane/Downloads/SSRN-id2970761.pdf    [Abstract:  What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?

The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term “person”? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the meaning of the Fourteenth Amendment.]

ABORTION: Why the Supreme Court Got it Wrong in Roe v. Wade (1973)

RIGHT TO LIFE - fetus in hand (from Prevent Disease Website)

(Photo Credit – Prevent Disease website)

by Diane Rufino, February 22, 2019

On January 22, 1973, the Supreme Court handed down one of the most controversial opinions in its history. It issued its opinion regarding the constitutionality of state laws banning and even criminalizing abortion. In striking down those laws, it identified a new fundamental right – the right of a woman to have an abortion, at essentially any time during her pregnancy and for whatever reason. It decided the case of Roe v. Wade.

States are allowed to regulate a wide variety of actions in the interest of protecting the people within its borders. These are the laws that are pursuant to its vast “police powers” – the power to regulate for the health, safety, welfare,, and morality of its citizens. These are the powers reserved to the states under the 10th Amendment, and the powers intended to remain with each state. Aside from these police powers (the 10th Amendment), the Constitution puts certain limits the states’ authority to regulate. One of those limits is when there is an individual liberty right at stake. (And not just any “liberty right” at that; the right at stake must have been a recognized liberty right at the time the 14th Amendment was adopted, which was 1868. For any other asserted liberty right, the Constitution would need to be amended per Article V’s amendment process. See the Appendix at the end of the article). In Roe v. Wade, Norma McCorvey (aka, petitioner Roe) argued that the Constitution protected her liberty to choose to have an abortion, and that that right was paramount to the state’s right to regulate abortion.
Disregarding the Court’s established jurisprudence regarding the Due Process Clause of the 14th Amendment, the Supreme Court agreed with McCorvey.

In a 7-2 opinion written by Justice Harry Blackmun, he Supreme Court declared the right to an abortion is a fundamental liberty right that the state can only limit thru regulation if that regulation furthers a very strong state interest (a “compelling state interest”) and is narrowly-tailored to achieve that interest. That is, it cannot be overbroad. The Court then went on to conclude that a woman’s liberty right in controlling whether or not she is pregnant (hence, her right to choose to have an abortion) is stronger than the state’s interest in banning abortions outright.

Justice Blackmun wrote: “[Although] the Constitution does not explicitly mention any right of privacy … the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. … This right of privacy, whether it be founded in the 14th Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the 9th Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. … We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”

Blackmun also addressed the very controversial issue of whether a fetus is a “person” within the meaning of that word in the 14th Amendment. He continued:

“The Constitution does not define ‘person’ in so many words. … The use of the word is such that it has application only postnatally.… This persuades us that the word ‘person,’ as used in the 14th Amendment, does not include the unborn. … In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. … In short, the unborn have never been recognized in the law as persons in the whole sense.”

Blackmun then summarized the “balancing of competing interests” at stake in the issue of pregnancy and abortion in what has become known as “the Trimester Test”:

“A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the 14th Amendment. a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

The opinion would go on to explain that the “health of the mother” does not necessarily only mean physical health. An abortion in the third trimester can be justified for any reason related to physical health, mental health, psychological well-being, age (being too young), familial (meaning the family wants the baby aborted), or even financial well-being. Even if the woman feels stressed from the pregnancy, she would be within her right to abort her later-term baby for “health” reasons. In other words, the opinion basically established the rule that a woman’s right to an abortion always outweighs the right to life for the unborn. Since 1973, Roe v. Wade has stood for the legal principle that a woman can have an abortion at any point in her pregnancy for any reason whatsoever, and neither the federal government nor any state can place any pre-conditions or restrictions on a woman’s right to that abortion. In other words, Roe assures women the right to an abortion on demand.

The infamous Roe decision (and its companion case, Doe v. Bolton) was the opinion of 7 out of 9 members of the court. Two justices dissented – Justice Byron White and Justice William Rehnquist. Justice White believed the Court created a new right not envisioned by the Constitution and both he and Justice Rehnquist believed the question of abortion was a state matter covered by the 10th Amendment.

Justice White wrote, in his dissenting opinion:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

The Court, for the most part, sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. he Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.

Justice Rehnquist dissented with these views:

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).

If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of Mr. Justice Stewart in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature.  By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and “has remained substantially unchanged to the present time.

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

And, as the 10th Amendment states so clearly, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The power to regulate for the safety, health, welfare, and morality of its people are the so-called “Police Powers” reserved by each state under the 10th Amendment. Because the power to regulate abortions was not prohibited to the States under the Constitution or by the 14th Amendment, the power continues to reside with the state. [We are, of course, referring to abortions that aren’t absolutely medically necessary on account of rape or incest or to preserve the life or physical health of the mother; we are referring to the types of abortions that Roe and Doe filed suit for, and the types of abortions that our sexually-active and adventurous progressive/liberal population, which are merely and essentially for convenience].

The Roe v. Wade decision has resulted in the deaths of over 60 million children since that infamous January date.

Liberals and progressives, fearing that a right-leaning Supreme Court may try to limit a woman’s right to an abortion, have taken to their state legislatures to protect that right. And in many cases, as we are witnessing, they are doing so that would probably even offend the Roe court. States like New York and Virginia and Rhode Island and the District of Columbia are pursuing “late-term” abortion bills that essentially remove any meaningful state interest in the life of the unborn such that a woman can terminate her pregnancy at any point, even killing her living unborn. New York has already passed its law – the mis-named Reproductive Health Act, and the others no doubt will soon follow.

As horrible, as horrific, as heinous, as unconscionable as these laws sound, they are perfectly compliant with the Roe v. Wade opinion. That is the sad reality.

These “late-term abortion” laws show just how broad, and how cruel and insidious the Roe decision was (is).

The truth is that 31 states have relaxed abortion laws. At one time North Carolina had a fairly relaxed abortion law, but over the years, the state has exercised its interest in the life of the unborn. Currently, it is seeking to prevent any abortion after 13 weeks, except when the woman’s attending physician is able to explain why an abortion is needed to prevent risk of death to the mother or other medical emergency. 23 states permit a later-term abortion “for the life and health of the mother,” which essentially means that a woman can terminate her pregnancy at any time for any reason, since the Supreme Court has interpreted “health” to mean any number of things – physical, emotional, psychological, financial, familial, because of stigma, and for age or for stress. These 23 states are: Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New York, Ohio, Pennsylvania, Tennessee, Utah, Virginia, Washington, Wisconsin, and Wyoming. Compare this relaxed standard to the more strict one, which permits a woman to have a later-term abortion only if is necessary “for life and physical health of the mother.” Sixteen (16) states have this more strict standard – Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Wyoming. There are 3 states that allow a full-term baby to be directly killed, but only if the pregnancy poses a direct risk to the mother’s life. Those states are Idaho, Michigan, and Rhode Island.

Now, take special note of these particular states: Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont. They don’t even require the pretense of a “health” reason for women to abort their full-term babies. In those 7 states, there are no bans at all on abortion at any stage. Those states are virtual killing fields. As Laurie Higgins wrote in the Illinois Family Institute: “It’s open season on babies who, through no fault of their own, have the misfortune of being conceived in the wrong womb.”

Just to drive home how barbaric a late-term abortion is – the kind of abortion just legalized in New York and the kind that Virginia expressly wanted to legalize, here is how a former abortionist describes the procedure:

“The baby is injected with a poison directly into his skull or torso. He then suffers a hideously painful death, which he will certainly feel because of his developed nervous system. The mother carries the corpse around in her womb for a day. The next day, there is an ultrasound to check if the baby is dead. If he isn’t….. if, by some miracle he survived and has been writhing and suffering in agony for the past 24 hours clinging onto life, then he will be injected again. The following day, the mother delivers her dead child. Sometimes she delivers him at the clinic, but if she can’t make it on time, the clinic is perfectly happy to recommend that she give birth into her toilet.”

What progressives and liberals don’t want the ordinary person to know is that all states allow late-term abortions that threaten a mother’s “life” – not just her “health.” There is no life-threatening condition that would ever necessitate the direct, intentional, active killing of a baby in the womb. There are relatively rare occasions in which continuing a pregnancy threatens a woman’s life, but ending a pregnancy does not require the direct, intentional, active killing of a baby. The key word here is “baby,” which means that the unborn is fully-developed or near to being fully-developed and capable of being cared for outside the womb by the mother, caregivers, or by special incubators and machines that can provide the care and protection that the mother’s womb can until term.

If there is a life-threatening condition that would necessitate the termination of a woman’s later-term, near full-term, or full-term pregnancy, the best option for doctors and for the woman is to deliver that baby. There are possible instances (such as cancer, a debilitating heart condition, toxemia, exceedingly high blood pressure, etc) when it may be necessary to remove the baby from its mother’s womb, but it is never necessary to kill him before removing him. There is no medical reason, and certainly no reasonable or moral one, to take that extra step of preemptively killing the child. Doctors can induce delivery or perform a C-section to save a woman’s life in a life-threatening or emergency situation without dismembering, crushing, burning, or chemically inducing cardiac arrest in a baby. In some induced deliveries or C-sections, babies will not survive, but that is wholly different from intentionally killing them.

The point is – the FACT is – that a delivery must happen either way. If a mother in the third trimester decides she doesn’t want or can’t have her baby inside her, she is going to have to deliver him one way or another. The only question is whether she will deliver a dead child or a living one. Giving a lethal injection to the child may be the more convenient route, but since when do we as a society put a greater value on convenience than on life itself. It certainly isn’t the necessary route.

Our options should always fall on the side of respecting and preserving life. We are the nation founded on the great truth that we are created and the moment we are created, we are endowed by our Creator with the inalienable rights of Life and Liberty.

God help us if we don’t change our thinking on this subject and don’t put an end to the killing fields.

Now, to be fair, most abortions are performed prior to 21 weeks of pregnancy. Agencies like the Center for Disease Control and abortion doctors themselves like to point out that the overwhelming percentage of abortions are performed up to 21 weeks. But, as I’ll make clear later, 21 weeks (which is very close to medical “viability”) does not mark the start of “life.” The fetus became a new living human being before that – being fully formed (just still very tiny) and exhibiting the functions of life (although some are still weak). Heck, a fetus has a heartbeat at around 6 weeks (although it isn’t heard well on an ultrasound until week 8). The point is that although most abortions are performed during the first half of pregnancy, a good portion of abortions are on the living; they are killing unborn babies.

The New York Reproductive Health Act has ignited a new debate on the abortion rights – specifically on the scope of the right and the fact that the Supreme Court never once considered the growing fetus/baby to be a “life,” let alone a unique life (not a clone of the mother).

You can see from the Roe decision, that by giving women an expansive, unfettered right to terminate her pregnancy (under the guise of “controlling her reproduction”), we have ushered in an era of evil. Since the abortion clinics have opened their doors, a parade of horribles has ensued. It appears that dissenting Justice Byron White summarized the majority’s opinion pretty well when he wrote: “At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure. And the Court, for the most part, sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus…” But he shouldn’t have been so kind to the majority. That last sentence should have read: “During the entire length of a pregnancy, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus.” That is exactly what the Roe decision stands for.

Because of this parade of horribles and the clear intent on the part of Democrats/progressives/liberals to of protecting this absolute right as against all those horribles, I have to believe that the Roe opinion can be re-visited for a more compassionate, moral, scientific outcome, and yes, constitutional decision.

For years, I have spoken and written about the Roe v. Wade decision (Supreme Court, January 22, 1973, announcing a fundamental right, or “liberty right” for women in aborting their unborn). I have held the opinion that the decision was perhaps incorrectly decided because its central premise was wrong. The Supreme Court, including conservative justice Antonin Scalia, made the underlying assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus in writing its Trimester Approach to when a woman has most control over her reproduction. The “Trimester Test” was the approach the Court used in summarizing the “balancing of competing interests” at stake in a woman’s pregnancy – the woman’s interest in controlling her reproduction and what happens in her uterus, the state’s interest in the life of the unborn, and the unborn’s right to the life it was intended to have. Sadly, the Court, in fleshing out the competing interests in its opinion, made it clear that any threat to a woman’s health in the third trimester (where typically the interests are greatest for the state and for the unborn) outweighs the interests of the other parties. And it explained that the threat need not be medical in nature. The unborn or the pregnancy itself need not pose any physical harm to her. Other types of harm justifying an abortion up until the moment of birth would include emotional, psychological, and even financial. The mere fact that the pregnancy poses stress on the woman would justify an abortion, according to the high Court. That is why Roe v. Wade stands for the general rule that a woman has a constitutional right to an abortion at any time during her pregnancy, for any reason. She has an unfettered right to abort her fetus or her unborn baby….. she has a right to an abortion on demand.

Anyway, going back to my concern with the Roe v Wade opinion. I believe the Court used the wrong approach in reaching its opinion. Again, it made the general assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus. Viability means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Today, medical experts believe a fetus is viable at around 24 weeks (which is about halfway in the second trimester). The proper assessment should have been when the fetus becomes a “life.” We know mere conception doesn’t equate to life; it merely sets in motion what would become fetal development resulting in a fully-formed baby that the mother welcomes into the world to continue its growth and development outside the womb. We also know that life does not equate to viability because viability just asks when the baby can likely survive outside the womb. Implicit in that definition is that there is already a “life.” It just looks to see how advanced in development that life is. The unborn cannot live without the protection and life-sustenance from its mother. Similarly, a newborn also cannot live on its own, without the protection and life-sustenance from its parents or other caregiver. A life scientifically comes into being when there is a heartbeat, when the baby has its organs, and when it is nearly completely differentiated so that really all that is needed is more growth and fine-tuning of its life support systems for the outside world. Under this definition, the unborn is a “life” much earlier than viability.

“Life” = “personhood,” and it should be that simple. What kind of society are we when we go out of our way, legally, emotionally, and psychologically to strip certain groups of their personhood and therefore their rights? The most brutal of killers gets our full attention regarding his rights and his place as “a fellow human being.” But the sweetest, most gentle, the purest, and the most helpless are the ones we minimized and disregard. The 8th Amendment is supposedly a testament to our compassion as a civilized society. If that is so, what is the Roe decision and what is New York’s “late-term abortion” law? I would submit that it is a testament to our savagery and to this the most selfish, self-obsessed, and immoral society. We simply can’t justify these polar extremes of our so-called “civility.”

The key is using “life” as the key determinative is that when there is a “life,” our laws provide protection, including observance of its fundamental rights. I look to the Declaration of Independence which professes:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness….

In other words, the minute an individual is created, he or she is endowed with inalienable rights, including the right to Life. Moreover, government is instituted for the primary purpose of secure those rights. It makes no difference whether that individual is 15 years old, 40 years old, 10 years old, 1 month old, or 20 weeks old. The minute it became a living being, it is understood to be entitled to the most essential of all inalienable (those attaching to our very humanity) rights. Technically, according to the words of the Declaration, the minute a new human being is created (joining of reproductive cells at conception; “conception” comes from “conceived” which means a new life, a new human being, has been conceived).

Therefore, a “person,” for purposes of our Rule of Law and our US Constitution (including the Bill of Rights and the 14th Amendment) includes the unborn. Again, maybe not exactly at conception and for several weeks after that, but certainly, and clearly, towards the end of the first trimester and the beginning of the second trimester. And as such, the unborn “life” has the same fundamental rights as the mother. Once the mother allows the pregnancy to reach the point where life has been created, then she holds no greater interest than the interest the unborn has in continuing its development. In other words, the “competing interests” explanation of a pregnancy shifts greatly. And unlike the Court’s opinion in Roe, where the unborn never was considered a legal “person” in order to take advantage of the rights and liberties enshrined in our Declaration, our Constitution, and our laws and therefore the woman held all the power to decide the unborn’s fate, the approach I believe should have been taken would recognize that the unborn is absolutely a “person” so that a woman does NOT have the unfettered right to abort her unborn, kill it, or otherwise dispose of it.

We can explain the failure of the Supreme Court in Roe using additional legal arguments as well.

The case involved a challenge to a Texas statute that criminalized abortion, which means that Norma McCorvey (aka Roe) filed suit claiming an infringement of an essential (liberty) right protected by the 14th Amendment. Challenges to state law claiming a violation of civil rights or liberty rights recognized by the Bill of Rights are brought under the Due Process Clause of 14th Amendment. Over the years since it was adopted, the Supreme Court has used the Due Process Clause of the 14th Amendment to “incorporate” the liberty rights of the US Bill of Rights as against the states; that is, if the federal government cannot infringe on our religious liberty than neither can the states, if the federal government cannot ban firearms, neither can the states, and so forth and so on.

The 14th Amendment reads:

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.

As the Court had noted, it first had to determine if the unborn are considered “persons” within the meaning of the 14th Amendment. It concluded that they were not.

If the Court would have exercised proper interpretation authority and followed its own established 14th Amendment jurisprudence (precedent), it would have taken an originalist approach to the analysis, and the outcome would have been quite different (although not ultimately providing for the right of women to have an abortion; the decision would have been left to the states themselves).

Under an “originalist” approach, the Court would have had to determine what the word “persons” was understood to mean when the 14th Amendment was written and ratified. “Originalism” is often equated with “Textualism” (where judges look at the meaning of the words and intent at the time they were written) A honest analysis would have looked not only at the definition of the term “persons” around the time of 1868, but also at society’s view of abortion at that time. In fact, for a claimed right to be covered by the 14th Amendment and hence free from government/state regulation, that right would have had to have been considered an essential liberty right at the time the Amendment was adopted. In other words, the Court should have asked two questions: “What did the term ‘persons’ mean back in 1868?” And, “Was abortion considered a fundamental liberty right back in 1868?” [That is, the Court should have asked: Was the asserted right to an abortion “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)].

If the asserted right was not recognized at the time the Fourteenth Amendment was adopted, that means society was not ready to recognize it as such. To add a new right, one that is clearly defined only by the relaxed moral and sexual societal standards in this progressive/liberal age, the Constitution would need to be amended. And that would require the amendment process outlined in Article V.  We update our Constitution, not by the individual wisdom or opinion of a handful of judges but by the collective will of the people.

Josh Craddick, a Harvard Law student recently had a Law Review article published in which he looked into the definition of “persons.” In his article (“Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”), he noted that layman’s dictionaries at the time of the adoption of the 14th Amendment (adopted on July 28, 1868) treated the concepts of humanity and personhood interchangeably. He also consulted William Blackstone’s Commentaries on the Laws of England, a treatise that had profound influence on legal thinking, was used in American law schools, was relied on by the Supreme Court, and continues to be cited even today in Supreme Court decisions. It is cited at least 10-12 times each year. Blackstone expressly recognized that personhood and the right to life existed before birth. He set forth a simple and clear legal standard: “Where life can be shown to exist, legal personhood exists” (emphasis added). A look back through history shows that there were no laws to specifically protect the unborn prior to “quickening” (when the mother feels the baby begin to kick and move around) and prior to birth, and that makes sense in light of the generally-accepted definition of “personhood.” A pregnant woman was carrying a “life,” and hence she was carrying a new person.

With respect to the second question (“Was abortion considered an essential/fundamental liberty right back in 1868?”), Craddick researched the societal view of abortion back in the day. In his article, he showed that many of the states that voted to ratify the 14th Amendment had laws criminalizing abortion. What does that mean? It seems to confirm that at the time, Americans, state lawmakers, and government officials understood personhood to include the unborn, just as Blackstone defined it. It shows that society in 1868 viewed personhood and life in much the same way that pro-lifers understand.

Craddick wrote:

When the Amendment was adopted in 1868, the states widely recognized children in utero as persons. Nearly every state had criminal laws proscribing abortion, and most of these statutes were classified among ‘offenses against the person.’ There can be no doubt whatsoever that the word ‘person’ referred to the fetus.” Twenty‐three states and six territories referred to the fetus as a ‘child’ in their statutes proscribing abortion. At least twenty‐eight jurisdictions labeled abortion as an ‘offense against the person’ or an equivalent criminal classification. Nine of the ratifying states explicitly valued the lives of the preborn and their pregnant mothers equally by providing the same range of punishment for killing either during the commission of an abortion. The only plausible explanation for this phenomenon is that the legislatures considered the mother and child to be equal in their personhood. Furthermore, ten states (nine of which had ratified the Fourteenth Amendment) considered abortion to be either manslaughter, assault with intent to murder, or murder.

The adoption of strict anti‐abortion measures in the mid‐nineteenth century was the natural development of a long common‐law history proscribing abortion. Beginning in the mid‐thirteenth century, the common law codified abortion as homicide as soon as the child came to life (animation) and appeared recognizably human (formation), which occurred approximately 40 days after fertilization. Lord Coke later cited the “formed and animated standard,” rearticulating it as “quick with childe.”

Craddick went on to point out that even by the mid-nineteenth century, courts and states alike, were increasingly rejecting the “quickening” standard as scientifically obsolete and replacing it with fertilization. Imagine that !!

Sadly, we all know the reasons the justices of the Supreme Court made that colossally-erroneous assumption that “personhood” means “someone who walks around, who has an independent life outside a woman’s womb.” First, the Court knew that society couldn’t be responsible for all the unwanted births; the burden they would impose on society would break our system of welfare and social services. Second, the case moved up through the court system at a time when the Women’s Rights Movement was fighting for equality in the workplace and in the home, with equality resting squarely on her ability to determine when, or if, she would reproduce. A woman could not control her career, her future, or even her burden at home if she were to be held hostage by her uterus and her God-given ability to bring forth new life. The Court, obsessed with social justice and equality, saw the case as one to give the Women’s Rights Movement what it wanted – the ability to finally be equal in the workforce.

Germany wanted a racially-pure German race. It felt it had that right as a sovereign country. After all, the Nazi movement was about nationalism. Germany would never be treated and punished, plundered and broken up like it was after the defeat of the Triple Alliance nations in World War I. For Germany to have the ability to engineer a pure German race (a “master-race”), it needed to accept the genocide of the undesirables.

We have to be careful what ambition causes us to sacrifice or condone.

Abortion has become all-too-often synonymous with “convenience.” It’s a “choice” – a choice to be pregnant or not to be pregnant. Again, most times, a woman or girl has an abortion very early on, before there is life inside her. But many times it’s not a “choice”; it’s a baby.

I think a case can be made that the right needs limitations, and if that can be achieved, then women can be both pro-life and pro-choice, if that makes any sense. If we look at a “Balancing of Rights” approach rather than a “Balancing of Interests” approach – that is, if we balance the rights of the woman to control her reproduction with the big daddy of them all, the right to life, of the unborn child, rather than balance the rights of the woman to terminate her pregnancy with the interest of the state in protecting the pregnancy – then we will come to a point in the pregnancy when the developing fetus becomes a “life.” At that point, society can then legally deny abortions (except for situations such as rape, incest, or risk to the woman’s life). A woman will enjoy a period of time to decide whether she wants to continue the pregnancy (hence, pro-choice), but if she waits too long, then she will not be able to abort the baby and will not be able to take a life (hence, pro-life).

We need to have conversations. We need to find common ground between pro-life supporters and pro-choice advocates. We can’t continue to offend so greatly our national conscience. Roe v. Wade needs to be re-addressed. A woman may very well be entitled to a right to abort her pregnancy, but at least that issue needs to decided by a court that is willing to do a correct and honest analysis – recognizing that the unborn becomes a life well before it is born and therefore it has the same rights that every other human being has. A woman may very well have the right to have an abortion if she chooses, but that right can not be so broad or expansive as to include the taking of another life.

We need to get this issue back into court and in front of reasonable-minded justices.

We need to stop the killing fields.

 

- 0000000
References:
Roe v. Wade, 410 U,S. 113 (1973), Majority Opinion, written by Justice Harry Blackmun, Cornell Law Library – https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZO

Roe v. Wade, 410 U,S. 113 (1973), Dissenting Opinion, written by Justice William Rehnquist, Cornell Law Library – https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZD

Roe v. Wade, Dissenting Opinion, by Justice Byron White – https://en.wikisource.org/wiki/Roe_v._Wade/Dissent_White and
https://www.scribd.com/document/217330653/Dissent-White

Laurie Higgins, “31 States Permit Full-Term Abortions,” Illinois Family Institute, January 28, 2019. Referenced at: https://illinoisfamily.org/life/31-states-permit-full-term-babies-to-be-killed-in-the-womb-for-virtually-any-or-no-reason/

Joshua J. Craddick, Joshua J. Craddock, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?,” Harvard Journal of Law and Public Policy, Vol. 40, No. 2 (2017). Referenced at: file:///C:/Users/diane/Downloads/SSRN-id2970761.pdf [Abstract: What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?
The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term “person”? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the meaning of the Fourteenth Amendment.]

Calvin Freiburger, “Article in Harvard Law Journal Concludes: The Preborn Child is a Constitutional Person,” Live Action, June 1, 2017. Referenced at: https://www.liveaction.org/news/landmark-harvard-essay-preborn-child-constitutional-person/

VIDEO: Dr. Anthony Levatino, former abortion doctor, explains that abortion is never medically necessary to save a woman’s life during pregnancy – https://www.youtube.com/watch?time_continue=4&v=ysl1tRnk-ig [Let me illustrate with a real-life case that I managed while at the Albany Medical Center. A patient arrived one night at 28 weeks gestation with severe pre-eclampsia or toxemia. Her blood pressure on admission was 220/160. A normal blood pressure is approximately 120/80. This patient’s pregnancy was a threat to her life and the life of her unborn child. She could very well be minutes or hours away from a major stroke. This case was managed successfully by rapidly stabilizing the patient’s blood pressure and “terminating” her pregnancy by Cesarean section. She and her baby did well. This is a typical case in the world of high-risk obstetrics. In most such cases, any attempt to perform an abortion “to save the mother’s life” would entail undue and dangerous delay in providing appropriate, truly life-saving care. During my time at Albany Medical Center I managed hundreds of such cases by “terminating” pregnancies to save mother’s lives. In all those cases, the number of unborn children that I had to deliberately kill was zero.]

CHART: State-by-State Later Term Abortion Policies – https://www.kff.org/womens-health-policy/state-indicator/later-term-abortions/?currentTimeframe=0&selectedDistributions=state-prohibits-some-abortions-after-a-certain-point-in-pregnancy–threshold-for-later-term-abortions–later-term-abortion-permitted-when-pregnancy-threatens-womans&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D

State Facts About Abortion: North Carolina (Fact Sheet, May 2018), Guttmacher Institute – https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-north-Carolina

Brandon Moseley, “Federal Court Strikes Down an Alabama Abortion Law,” Alabama Reporter, August 23, 2018. Referenced at: https://www.alreporter.com/2018/08/23/federal-court-strikes-down-an-alabama-abortion-law/

GHI Breborowicz,” Early Pregnancy: Limits of Fetal Viability and Its Enhancement,” NCBI (National Center for Biotechnology Information), January 5, 2011; pp. 49-50. Referenced at: https://www.ncbi.nlm.nih.gov/pubmed/11753511 [“Viability” of a fetus, or “fetal viability,” means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Viability exists as a function of biomedical and technological capacities, which are different in different parts of the world. Consequently, there is, at the present time, no worldwide, uniform gestational age that defines viability. Viability is not an intrinsic property of the fetus because viability should be understood in terms of both biological and technological factors. It is only in virtue of both factors that a viable fetus can exist ex utero and thus later achieve independent moral status. Moreover, these two factors do not exist as a function of the autonomy of the pregnant woman. When a fetus is viable, that is, when it is of sufficient maturity so that it can survive into the neonatal period and later achieve independent human status given the availability of the requisite technological support, and when it is presented to the physician, the fetus is a patient. In the United States viability presently occurs at approximately 24 weeks of gestational age (Chervenak, L.B. McCullough; Textbook of Perinatal Medicine, 1998)].

“Can a Fetus Feel Pain?,” NCBI (National Center for Biotechnology Information), April 15, 2006; 332 (7546): 909–912. Referenced at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1440624/

“How Your Fetus Grows During Pregnancy,” American College of Obstetricians & Gynecologists (ACOG), (April 2018). Referenced at: https://www.acog.org/Patients/FAQs/How-Your-Fetus-Grows-During-Pregnancy?IsMobileSet=false

Traci DeVette Griggs, “New York’s War on Children Hits a New Low on Anniversary of Roe v. Wade,” Family Policy Facts (NC Family Policy Council), January 23, 2019. Referenced at: https://www.ncfamily.org/new-yorks-war-on-children-hits-a-new-low-on-anniversary-of-roe-v-wade/

Roe v. Wade, Texas Bar – https://www.texasbar.com/civics/High%20School%20cases/roe-v-wade.html

Roe v. Wade (1973), as explained by Clarke Forsythe, Senior Counsel for Americans United for Life (AUL) and Melissa Murray, Berkeley Law School professor. [Clarke Forsythe is also the author of the book Abuse of Discretion: The Inside Story of Roe V. Wade, and Ms. Melissa Murray in addition to being a law school professor, also as the Faculty Director for the Center for Reproductive Rights and Justice]. Referenced at: https://www.khanacademy.org/humanities/ap-us-government-and-politics/civil-liberties-and-civil-rights/amendments-due-process-and-the-right-to-privacy/v/roe-v-wade [See Appendix below for a transcript of this video]
APPENDIX: (Transcript of the Khan Academy Video, as modified a bit by Diane Rufino)

Question: “Mr. Forsythe, could you set the stage for us a little bit. What was going on during this time period?”

Mr. Clarke: “Well, there were efforts in the 1960s to repeal abortion laws in the individual states and when abortion activists were dissatisfied with those efforts, they decided to go into the courts. And around 1969, they took some cases into the courts and ultimately, there were 20 or more cases challenging state laws in the courts between 1969 and 1973. Roe vs. Wade was the case from Texas.”

Ms. Murray: “Roe was litigated in the early 1970s. It was a period of enormous change in the United States. We were beginning to see beginnings of the women’s rights movements, the beginning of the gay rights movement, and of course, the civil rights movement of the 1960s was moving in a lot of different directions. At the time, the question of abortion was very much on the minds of lots of different state legislatures because there had been moves to liberalize much of the criminal law that dealt with matters of sex and sexuality, including abortion. At the time, four states, New York, Alaska, Hawaii, and I believe Washington, had actually taken steps to repeal their laws criminalizing abortion. And about 13 other states had taken efforts to liberalize their laws criminalizing abortions, but in number of other states, around, at least 20 or more, there remained on the books, laws that absolutely criminalized abortion, except in situations where it would be necessary to preserve the woman’s health or life, or in cases of rape, incest, or fetal anomaly.”

Mr. Clarke: “Abortion rights attorneys sought plaintiffs who could challenge the Texas law and the Georgia law [ie, They were looking for a “test case”]. There were two attorneys from Texas who found Norma McCorvey, who they gave the pseudonym of Jane Roe, for purposes of protecting her privacy.”

Ms. Murray: “And so Norma McCorvey brought this case. She was an unmarried 22 year old woman living in Dallas County, Texas, who found herself pregnant for the third time. She gave birth to her first child, a daughter, and ultimately signed over custody to her mother to raise her since her life wasn’t very stable (she was moving around a lot). She gave her second child up for adoption. When she found herself pregnant for a third time, she wasn’t willing to do either of these things again and so she simply wanted to safely and legally terminate her pregnancy. But this was impossible under the Texas law. Texas had, since the 19th century criminalized abortion in all cases except those instances where it was necessary for the health and safety of the mother. And so she then was faced with the question of what was she going to do. And the only thing she could think to do then (that is, what her lawyers thought, and sought, to do), was to challenge the law as being unconstitutional. So she was put in contact with Sarah Weddington and Linda Coffee, two young women who had recently graduated from law school. Sarah Weddington was only 26 years old at the time she helped Norma McCorvey bring this case. They sued the State of Texas to challenge the constitutionality of Texas’ criminal abortion ban.”

Mr. Clarke: “But as the history shows, there was no trial, there was no evidence, there were no expert witnesses. Jane Roe never testified. As we all know, she never got an abortion. She gave birth and placed her child for adoption.” [In the years after the decision, Norma had a complete change of heart and became a strong opponent of abortion].

Question: “Okay, so Roe was Norma McCorvey. Who was Wade?”

Mr. Clarke: “Henry Wade was the District Attorney for Dallas, Texas, where the case was filed in Federal District Court.”

Questions: “So the case eventually made it to the Supreme Court. How did the Court rule?”

Mr. Clarke: “The Justices declared the Texas and Georgia laws unconstitutional and then rewrote a national law, a national abortion law, in which they said that the states could not regulate or limit abortion in the first trimester. They could regulate more in the second trimester, the second three months of pregnancy, to protect maternal health and they could regulate in the last three months of pregnancy, the last trimester, to protect maternal health or fetal life. The attorneys for the plaintiffs claimed that abortion fell within the right to privacy, even though privacy is not in the text of the Constitution, they said it was derived, or based in the language of the 14th Amendment of the Constitution even though the 14th Amendment doesn’t say anything about abortion, or the unborn child; the 14th Amendment just uses the term liberty. Ultimately the Court said that the right to abortion is part of the right to privacy based on the 14th Amendment.”

Question: “That’s very interesting. I’ve learned through many of these interviews, that this right to privacy is something that is never actually explicitly stated throughout the Bill of Rights, but there’s a penumbra of privacy that you see in a few ways. What was the Court’s reasoning that the right to an abortion could fall under this zone of privacy?”

Mr. Clarke: “If you read the Roe opinion – specifically, on page 152 of the opinion – Justice Blackmun starts out by citing a string of prior Supreme Court cases, beginning about 1910, which elude to a right of privacy which undergirds other rights in the Bill of Rights. Blackmun argued that these cases lead to a general right of privacy, and that this right of privacy is broad enough to encompass a woman’s right to an abortion. But then four pages later, on page 156, Blackmun turns around and says that abortion is inherently different from all those other cases that make up the right of privacy (including the right to use contraception and contraceptive devices to control fertility and reproduction, Griswold v. Connecticut (1965) because it involves the taking of a life.”

Ms. Murray: “The right of privacy doesn’t actually come from Roe vs. Wade. It comes from a case decided about eight years earlier, in 1965, called Griswold vs. Connecticut. The issue in the Griswold case was whether a Connecticut state statute that made it a crime to use contraception or even to counsel patients about contraception violated the Constitution. Planned Parenthood League of Connecticut opened up a birth control clinic in New Haven, Connecticut. They were promptly arrested and the clinic was closed. They challenged the statute, arguing that the right to use contraception was a fundamental individual right. Furthermore, they argued that since individuals have the right to use contraception, doctors also have the right to advise patients about such. Patients are entitled to be informed about their medical choices. The Supreme Court, in an opinion authored by Justice William Douglas, agreed with the clinic. In the Griswold case, the Court articulated for the first time this right of privacy. The opinion explained that while the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First (the right to conscience created by the right to worship freely), the Third (the right to be free in one’s home from the quartering of troops), the Fourth (the right to be safe and secure in one’s own person, one’s home, and with one’s effects from unreasonable government searches and seizures), and the Ninth Amendments create the right to privacy which encompasses marital relations. Douglas, writing for the majority, indicated that this right had actually ‘been percolating in the Court’s decisions for some time.’”

Question: “Did any of the Justices dissent in the Roe decision and if so, why?”

Mr. Clarke: “Well there were two dissents, one by Justice White and the other by Justice Rehnquist. Justice White said that the Court was engaging in raw judicial power (ie, judicial activism) and that the Justices did not have the right or the authority, on account of the 10th Amendment, to strike down the abortion laws of the individual states: it could only rely on a doctrine called ‘substantive due process.’ The justices were addressing the assertion that a woman’s right to an abortion is a fundamental right and hence, under the Due Process Clause of the 14th Amendment, it cannot be violated or burdened. The Due Process Clause says that no person can be deprived of “life, liberty, or property, without due process of law.” However, there are clear limits as to which individual “liberty” rights are imposed on a state (that is, those which it is obligated to respect and refrain from regulating). In in 1934, the Supreme Court held that due process is violated “if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” In other words, as explained further by the Court, the right must have been recognized as a liberty right (essential to our sense of ordered liberty) at the time of the adoption of the 14th Amendment to be recognized by its Due Process Clause. Justice Rehnquist said that there is clear historical evidence that many states passed abortion limits and prohibitions precisely at the time of the framing of the 14th Amendment in the 1860s and leading up to 1868, which is when the Amendment was added to the Constitution. In other words, this history was evidentiary history. As such, this history of state limits and prohibitions on abortion actually served to contradict the petitioner’s (the birth control clinic’s) assertion that the 14th Amendment was intended to include a right to abortion.”

Question: “It appears that Roe is not the last word on abortion in the United States. There have been several later cases that were important to this as well, like Planned Parenthood vs. Casey, or Whole Woman’s Health vs. Hellerstedt. Can you talk a little bit about how those cases have altered the scope of the right to abortion?

Ms. Murray: “As soon as Roe was decided in 1973, there was an effort to sort of roll it back and hem it in a little bit. Frank Church, who’s a Senator from Idaho, announced ‘The Church Amendment,’ which basically says that physicians don’t have to perform abortions if doing so would conflict with their conscience or conscientious beliefs. So we see one way to limit the reach of this right – by limiting the number of providers who are available to offer abortions.”

Mr. Clarke: “In fact, the Court has kind of cut back on Roe vs. Wade in four cases over the years. But then in 2016, it appeared to return to its original position that the state nor federal government would tolerate any impermissible burden to a woman’s right to an abortion:
Harris vs. McRae [A 1980 case in which the Court acknowledged that federal funding could be limited for abortions. The Court held that states participating in the Medicaid program (established under Title XIX of the Social Security Act) were not obligated to fund medically necessary abortions. Title XIX of the Social Security Act was enacted to provide federal financial assistance to states that chose to reimburse certain costs of medical treatment for needy persons. Beginning in 1976, Congress passed a number of versions of what was known as the “Hyde Amendment” which severely limited the use of federal funds to reimburse the cost of abortions under the Medicaid program. Cora McRae, a pregnant Medicaid recipient, challenged the Hyde Amendment, filing suit against Patricia R. Harris, the US Secretary of Health and Human Services. The Supreme Court found that a woman’s freedom of choice did not carry with it “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices”].
Planned Parenthood vs. Casey [A 1992 case in which the Supreme Court upheld various restrictions to an immediate abortion (an “abortion on demand”). The Pennsylvania state legislature amended its abortion control law in 1988 and 1989, to required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. In a bitter, 5-to-4 decision, the Supreme Court again re-affirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the Court imposed an articulable standard to determine the validity of laws restricting abortions. The standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden” on a woman’s right to an abortion, which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, the only provision to fail the undue-burden test was the husband notification requirement]. Other similar cases involving restrictions on immediate access to an abortion reached the same conclusion.
Whole Woman’s Health versus Hellerstedt [In 2016, the Supreme Court flipped. In this case, the Supreme Court was asked to rule on the constitutionality of a Texas law that put limits on physicians performing abortions and on the abortion facilities themselves. A group of abortion providers sued the state. In a 5-3 opinion authored by Justice Stephen Breyer (remember, Justice Scalia had passed in February or 2016 and so it was only an 8-member Court at the time) the Supreme Court noted that the provisions that were challenged did not actually offer the medical benefits that they claimed to offer. Hence, as a matter of constitutionality, they were insufficient to justify the burdens on access that each of those provisions imposed.

Question: “What do you see as the future of Roe vs. Wade?”

Mr. Clarke: “Well, the Supreme Court has failed as the national abortion control board. It cannot monitor abortion. It can’t intervene, it can’t regulate or legislate itself, it can’t act as public health administrators, and it can’t investigate. And so I believe it’s absolutely certain that the Court, sooner or later, will have to overturn the Roe decision because of this failure and return the matter to the states.”

Ms. Murray: “Remember, when they were talking about repealing or reforming those abortion laws we referred to earlier, from the 1960s and 70s, it was connected in a big way to the growing women’s rights social movement. Perhaps the most critical question of that movement asked ‘What will be the role of women going forth in a modern society.’ When the question of contraception came before the Court in 1965, one of the questions was whether women should be allowed to control her reproduction and to choose when to have children…. Should she be allowed to control the timing of births in order to accommodate her career. It’s the same issue that came up in the abortion debate. If women were to have equal opportunities in the workforce, they would need to determine when they would become mothers and to determine the timing of their children. They would also need the flexibility to determine if they even wanted a child in the first place.”

Question: “So we’ve learned that the decision to legalize abortion in Roe vs. Wade was based on the right of privacy, which the Supreme Court has inferred from the Due Process Clause of the 14th Amendment. Since the Roe decision, a number of other cases have set limits on abortion and abortion clinics. Clarke Forsythe argues that the Supreme Court has failed in regulating abortion and that the issue should be returned to the states. Melissa Murray, by contrast, suggests that the decision in Roe is crucial to giving women the freedom to join the workforce and make decisions about when to have children.

To learn more about his case, visit the National Constitution Center’s Interactive Constitution and Khan Academy’s resources on US Government and Politics.

Why Can’t Women be Both Pro-Choice AND Pro-Life? It’s Possible With Common Sense Limitations on Abortion

ABORTION - Right to Life

by Diane Rufino, January 30, 2019

On January 22, 1973, the Supreme Court handed down one of the most controversial opinions in its history. It issued its opinion regarding the constitutionality of state laws banning and even criminalizing abortion. In striking down those laws, it identified a new fundamental right – the right of a woman to have an abortion, at essentially any time during her pregnancy and for whatever reason. It decided the case of Roe v. Wade.

States are allowed to regulate a wide variety of actions in the interest of protecting the people within its borders. These are the laws that are pursuant to its vast “police powers” – the power to regulate for the health, safety, welfare,, and morality of its citizens. These are the powers reserved to the states under the 10th Amendment, and the powers intended to remain with each state. Aside from these police powers (the 10th Amendment), the Constitution puts certain limits the states’ authority to regulate. One of those limits is when there is an individual liberty right at stake. (And not just any “liberty right” at that; the right at stake must have been a recognized liberty right at the time the 14th Amendment was adopted, which was 1868.  For any other asserted liberty right, the Constitution would need to be amended per Article V’s amendment process. See the Appendix at the end of the article).  In Roe v. Wade, Norma McCorvey (aka, petitioner Roe) argued that the Constitution protected her liberty to choose to have an abortion, and that that right was paramount to the state’s right to regulate abortion. Disregarding the Court’s established jurisprudence regarding the Due Process Clause of the 14th Amendment, the Supreme Court agreed with McCorvey.

In a 7-2 opinion written by Justice Harry Blackmun, he Supreme Court declared the right to an abortion is a fundamental liberty right that the state can only limit thru regulation if that regulation furthers a very strong state interest (a “compelling state interest”) and is narrowly-tailored to achieve that interest. That is, it cannot be overbroad.  The Court then went on to conclude that a woman’s liberty right in controlling whether or not she is pregnant (hence, her right to choose to have an abortion) is stronger than the state’s interest in banning abortions outright.

Justice Blackmun wrote: “[Although] the Constitution does not explicitly mention any right of privacy … the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. … This right of privacy, whether it be founded in the 14th Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the 9th Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. … We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”

Blackmun also addressed the very controversial issue of whether a fetus is a “person” within the meaning of that word in the 14th Amendment.  He continued:

“The Constitution does not define ‘person’ in so many words. … The use of the word is such that it has application only postnatally.… This persuades us that the word ‘person,’ as used in the 14th Amendment, does not include the unborn. … In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. … In short, the unborn have never been recognized in the law as persons in the whole sense.”

Blackmun then summarized the “balancing of competing interests” at stake in the issue of pregnancy and abortion in what has become known as “the Trimester Test”:

“A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the 14th Amendment. a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

The opinion would go on to explain that the “health of the mother” does not necessarily only mean physical health. An abortion in the third trimester can be justified for any reason related to physical health, mental health, psychological well-being, age (being too young), familial (meaning the family wants the baby aborted), or even financial well-being. Even if the woman feels stressed from the pregnancy, she would be within her right to abort her later-term baby for “health” reasons.  In other words, the opinion basically established the rule that a woman’s right to an abortion always outweighs the right to life for the unborn. Since 1973, Roe v. Wade has stood for the legal principle that a woman can have an abortion at any point in her pregnancy for any reason whatsoever, and neither the federal government nor any state can place any pre-conditions or restrictions on a woman’s right to that abortion. In other words, Roe assures women the right to an abortion on demand.

The infamous Roe decision (and its companion case, Doe v. Bolton) was the opinion of 7 out of 9 members of the court. Two justices dissented – Justice Byron White and Justice William Rehnquist. Justice White believed the Court created a new right not envisioned by the Constitution and both he and Justice Rehnquist believed the question of abortion was a state matter covered by the 10th Amendment.

Justice White wrote, in his dissenting opinion:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

The Court, for the most part, sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. he Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women [410 U.S. 223] whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.

Justice Rehnquist dissented with these views:

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).

If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of Mr. Justice Stewart in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and “has remained substantially unchanged to the present time.”

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

And, as the 10th Amendment states so clearly, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The power to regulate for the safety, health, welfare, and morality of its people are the so-called “Police Powers” reserved by each state under the 10th Amendment. Because the power to regulate abortions was not prohibited to the States under the Constitution or by the 14th Amendment, the power continues to reside with the state. [We are, of course, referring to abortions that aren’t absolutely medically necessary on account of rape or incest or to preserve the life or physical health of the mother; we are referring to the types of abortions that Roe and Doe filed suit for, and the types of abortions that our sexually-active and adventurous progressive/liberal population, which are merely and essentially for convenience].

The Roe v. Wade decision has resulted in the deaths of over 60 million children since that infamous January 1973 date.

Fast forward to 2019.  On the 46th anniversary of Roe v. Wade, the New York state legislature passed the Reproductive Health Act, a “late-term abortion” bill that now allows women to freely have abortions in the state at practically any time up until the birth of the child and for almost any reason. It essentially minimizes any state interest in the well-being or life of the unborn child. The New York State Senate passed the Reproductive Health Act late in the evening on January 22, and Governor Andrew Cuomo quickly signed it into law.

Even before this new law was enacted, over a third of all unborn babies in New York City were aborted. The Center for Disease Control and Prevention (CDC) reported that in 2015, there were 544 abortions for every 1,000 live births in NYC, with African-Americans predominantly being the ones aborting their babies.

The new “late-term abortion” law in NY states that abortions are now legal when:

(i)  “The patient is within twenty-four weeks from the commencement of pregnancy, OR;

(ii)  There is absence of fetal viability, OR;

(iii)  The abortion is necessary to protect the patient’s life or health.”

While the law appears to put conditions on a woman’s right to abort her unborn baby after 24 weeks (after “viability”), those conditions are essentially meaningless.  We read the phrase “to protect the patient’s life or health” to understand that an abortion would be permitted post 24 weeks if the woman is in danger of dying or suffering some permanent damage. But we would be wrong. According to the Supreme Court’s decision in Doe v. Bolton, the companion case to Roe v. Wade, “health” includes “all factors—physical, emotional, psychological, familial, financial situation, and the woman’s age—relevant to the wellbeing of the patient.”  The Roe decision mentioned stress on the mother as a health concern justifying an abortion in the third trimester. So, the law essentially removes any restrictions on a woman having an abortion up until the baby’s birth.

This law shows just how broad, and how cruel and insidious the Roe decision was. It wasn’t until Democrats finally achieved a solid majority in both chambers of the New York Legislature that they finally passed this bill. For the past 12 years, Democrats have tried to get it passed by Republicans were able to block it each time.

The Virginia state legislature defeated a similar bill on Tuesday, January 29. Virginia Rep. Kathy Tran introduced a bill (HB 2491) which would have allowed for abortion up until birth in cases in which the health or life of the mother is at risk. (Refer to the video referenced at the end of this article, discussion with a former abortion doctor –  https://www.youtube.com/watch?time_continue=4&v=ysl1tRnk-ig ). The Repeal Act would remove all existing abortion restrictions in the state of Virginia, and as Tran has admitted, would include allowing an abortion even when a woman is in active labor about to deliver her child.  Truly unconscionable.

ABORTION ARTICLE - Twitter Comment (Dr. Omar Hamada)

Virginia may follow the New York plan, which was to continue to propose such legislation until Democrats take control of both houses of its legislature. But the truth is that Virginia already has a fairly relaxed abortion law and a fairly relaxed abortion policy, pretty much following the guidance the Supreme Court has provided in Roe and Doe (again the companion case) and in its subsequent opinions, such as Casey.

My guess is that liberal states like New York, which have large populations of women who can’t, or refuse to, exercise proper control over their bodies or in their sex lives, want to make sure abortion rights are alive and well (and enlarged and unfettered) within their borders just in case an evil conservative Supreme Court (perhaps even a “ruthless court) dares to try to put reasonable limits on that right in any way. I think we are seeing such laws being passed which expressly make it clear that a woman has a right, up until the point of delivery, to terminate and abort the life growing inside her. They want to make sure that Roe is viewed as standing for the most expansive view of the right to an abortion. And if the Supreme Court should just happen to follow the legal position of dissenting justices Byron White and William Rehnquist, which was that the states have the right, under the 10th Amendment, to legislate abortion and the federal government had no point taking that right away from them, the states themselves will already be ready with strong abortion-protection laws for our women’s rights mentality population.

Pro-baby-killing advocates are preparing for the day Roe v. Wade is overturned. (which may happen but the right of a woman to have an abortion will never be taken away; it will just be protected on a state-by-state basis).

The truth is that 31 states have relaxed abortion laws, with North Carolina being one of them.  24 states, including North Carolina, permit a later-term abortion “for the life and health of the mother,” which essentially means that a woman can terminate her pregnancy at any time for any reason, since the Supreme Court has interpreted “health” to mean any number of things – physical, emotional, psychological, financial, familial, because of stigma, and for age or for stress. These 24 states are:  Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Utah, Virginia, Washington, Wisconsin, and Wyoming. Compare this relaxed standard to the more strict one, which permits a woman to have a later-term abortion only if is necessary “for life and physical health of the mother.”  Sixteen (16) states have this more strict standard – Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Wyoming.  There are 3 states that allow a full-term baby to be directly killed, but only if the pregnancy poses a direct risk to the mother’s life. Those states are Idaho, Michigan, and Rhode Island.

Now, take special note of these particular states: Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont. They don’t even require the pretense of a “health” reason for women to abort their full-term babies. In those 7 states, there are no bans at all on abortion at any stage. Those states are virtual killing fields. As Laurie Higgins wrote in the Illinois Family Institute: “It’s open season on babies who, through no fault of their own, have the misfortune of being conceived in the wrong womb.”

Just to drive home how barbaric a late-term abortion is – the kind of abortion just legalized in New York and the kind that Virginia expressly wanted to legalize, here is how a former abortionist describes the procedure:

“The baby is injected with a poison directly into his skull or torso. He then suffers a hideously painful death, which he will certainly feel because of his developed nervous system. The mother carries the corpse around in her womb for a day. The next day, there is an ultrasound to check if the baby is dead. If he isn’t…..  if, by some miracle he survived and has been writhing and suffering in agony for the past 24 hours clinging onto life, then he will be injected again. The following day, the mother delivers her dead child. Sometimes she delivers him at the clinic, but if she can’t make it on time, the clinic is perfectly happy to recommend that she give birth into her toilet.”

What progressives and liberals don’t want the ordinary person to know is that all states allow late-term abortions that threaten a mother’s “life” – not just her “health.”  There is no life-threatening condition that would ever necessitate the direct, intentional, active killing of a baby in the womb. There are relatively rare occasions in which continuing a pregnancy threatens a woman’s life, but ending a pregnancy does not require the direct, intentional, active killing of a baby. The key word here is “baby,” which means that the unborn is fully-developed or near to being fully-developed and capable of being cared for outside the womb by the mother, caregivers, or by special incubators and machines that can provide the care and protection that the mother’s womb can until term.

If there is a life-threatening condition that would necessitate the termination of a woman’s later-term, near full-term, or full-term pregnancy, the best option for doctors and for the woman is to deliver that baby. There are possible instances (such as cancer, a debilitating heart condition, toxemia, exceedingly high blood pressure, etc)  when it may be necessary to remove the baby from its mother’s womb, but it is never necessary to kill him before removing him. There is no medical reason, and certainly no reasonable or moral one, to take that extra step of preemptively killing the child. Doctors can induce delivery or perform a C-section to save a woman’s life in a life-threatening or emergency situation without dismembering, crushing, burning, or chemically inducing cardiac arrest in a baby. In some induced deliveries or C-sections, babies will not survive, but that is wholly different from intentionally killing them.

The point is – the FACT is –  that a delivery must happen either way. If a mother in the third trimester decides she doesn’t want or can’t have her baby inside her, she is going to have to deliver him one way or another. The only question is whether she will deliver a dead child or a living one. Giving a lethal injection to the child may be the more convenient route, but since when do we as a society put a greater value on convenience than on life itself.  It certainly isn’t the necessary route.

ABORTION ARTICLE - Twitter Comment (Matt Walsh(

Our options should always fall on the side of respecting and preserving life. We are the nation founded on the great truth that we are created and the moment we are created, we are endowed by our Creator with the inalienable rights of Life and Liberty.

God help us if we don’t change our thinking on this subject and don’t put an end to the killing fields.

Now, to be fair, most abortions are performed prior to 21 weeks of pregnancy. Agencies like the Center for Disease Control and abortion doctors themselves like to point out that the overwhelming percentage of abortions are performed up to 21 weeks.  But, as I’ll make clear later, 21 weeks (which is very close to medical “viability”) does not mark the start of “life.” The fetus became a new living human being before that – being fully formed (just still very tiny) and exhibiting the functions of life (although some are still weak). Heck, a fetus has a heartbeat at around 6 weeks (although it isn’t heard well on an ultrasound until week 8)..

The point is that although most abortions are performed during the first half of pregnancy, a good portion of abortions are on the living; they are killing unborn babies.

This New York Reproductive Health Act has ignited a new debate on the abortion rights – specifically on the scope of the right and the fact that the Supreme Court never once considered the growing fetus/baby to be a “life,” let alone a unique life (not a clone of the mother).

If this abortion law doesn’t disturb you, look at the other ways that a woman’s right of abortion plays out:

On May 12, 2016, Alabama’s Governor Robert Bentley signed bill SB363 into law, to go into effect later that year, on August 1.  SB363 is the Alabama Unborn Child Protection from Dismemberment Abortion Act.  It was never allowed to go into effect.

SB 363 would have prohibited a physician from performing a “dismemberment abortion” unless it was necessary to prevent serious health risk to the pregnant person. The bill defines “dismemberment abortion” as “the purpose of causing the death of an unborn child, purposely to dismember a living unborn child and extract him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors, or similar instruments that, through the convergence of two rigid levers, slice, crush, or grasp, or any combination of the foregoing, a portion of the unborn child’s body to cut or rip it off.”

The bill would have allowed for a cause of action for injunctive relief and a cause of action for civil damages against a person who performs such a “dismemberment abortion.” Any person who violated the law would be fined $10,000 and/or imprisoned for up to two years.

This law targeted a procedure known as dilation and evacuation (D&E) which is frequently used during second-trimester abortions. According to the American Congress of Obstetricians and Gynecologists, an abortion using suction aspiration can be performed up to 14 weeks’ gestation, but after 14 weeks, the D&E procedure would need to be used to perform an abortion. As such, dilation and evacuation bans, depending upon their language, may ban all surgical abortion past 14 weeks’ gestation.

The bill’s provisions were based on claims that a fetus can feel pain at 20 weeks or earlier.  A look at some medical studies seems to conclude that a fetus doesn’t feel pain before 24-26 weeks (see the NCBI article cited – “Does a Fetus Feel Pain?”).  However, some have reported that pain is observable in fetuses at 18 weeks’ of gestation and that there are clear behavioral responses to noxious stimuli (to a needle, to concentrated saline solution) by 26 weeks’ gestation. The Alabama ACLU argued that leading medical experts such as the American College of Obstetricians and Gynecologists oppose this type of abortion restriction because the D&E procedure so effective. An evidence-based and non-partisan report from the National Academies of Science, Engineering, and Medicine described D&E as a “superior method” of abortion, finding that it is extremely safe with minimal complications.

Despite the gruesomeness that Alabama’s law sought to avoid, the American Civil Liberties Union (ACLU, the organization that Ruth Bader Ginsburg devoted her early legal career to) filed suit to have it overturned. The ACLU alleged that Supreme Court jurisprudence on abortion is clear and that states may not impose undue burdens on a woman’s right to have an abortion or to make it burdensome for her to make necessary medical decisions regarding her pregnancy. It argued that the law must be stricken in order that doctors can continue to use their best judgement to provide the care that is right for their patients, in light of a woman’s right to terminate her pregnancy. At first the ACLU sought an injunction/ temporary restraining order to block enforcement of SB363 (which was granted on July 13, 2016), and then on October 26, 2017, US District Court Judge Myron Thompson ruled the law unconstitutional. On August 22, 2018, the 11th Circuit Court of Appeals upheld the ruling.  [case: West Alabama Women’s Center v. Miller; West Alabama Women’s Center filed suit on behalf of the facility and its doctors and patients against Thomas Miller, Alabama state Health Officer].

The really sad thing is that the 11th Circuit knew its ruling was wrong. It knew that its endorsement of the lower court ruling was intellectually dishonest. It knew its ruling was wrong because it has long-held that the Supreme Court got it wrong in Roe v. Wade (1973) and in subsequent cases such as Planned Parenthood of Se. Pa. v. Casey (1992).  The 11th Circuit has criticized the Supreme Court’s abortion decisions, calling them “an aberration of constitutional law,” and accusing the majority of creating a new right from the bench, thus siding with the views of the dissenting justices, Byron White and William Rehnquist.

If the judges knew the ruling was wrong, why did it issue it?  Judge Joel Dubina of the 11th Circuit was forthright in his explanation. Essentially, he said that as an inferior court to the Supreme Court, he was bound to rule in favor of its prior decisions. And under that standard, he had to conclude that Alabama’s law prohibiting dismemberment abortions of live unborn babies, known as Dilation and Extraction (D&E), violates the High Court’s decisions.

In his special concurrence, Judge Dubina wrote:

“I write separately to agree on record with Justice Thomas’s concurring opinion in Gonzales v. Carhart, 550 U.S. 124, 168-69, 127 S. Ct. 1610, 1639-40 (2007) (Thomas, J., concurring), with whom then Justice Scalia also joined. Specifically, Justice Thomas wrote, ‘I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey [Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992)] and Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705 (1973), has no basis in the Constitution.’ Id. at 169, 127 S. Ct. at 1639. The problem I have, as noted in the Chief Judge’s opinion, is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.”

Since when are federal judges BOUND BY OATH to follow all of the Supreme Court’s precedents?

I looked up the oath of office that federal judges must take when they are sworn in and this is what it says:

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”    [June 25, 1948, ch. 646, 62 Stat. 907; Pub. L. 101–650, title IV, § 404, Dec. 1, 1990, 104 Stat. 5124].

To me, it sounds like each federal judge owes paramount allegiance to the US Constitution from where judicial authority derives.

Kayla Moore, the President of the Montgomery based Foundation for Moral Law and a party supporting the bill, took issue with the ruling and with Judge Dubina’s position:

“Because the Eleventh Circuit had an amicus brief in front of it explaining why the court’s duty was to follow the Constitution instead of the Supreme Court, the court knew it had a duty to disregard Roe and protect the children’s right to live.” Moore added, “The Eleventh Circuit cannot wash its hands of the blood of the innocent by placing the blame on the Supreme Court. The victims of the Eleventh Circuit’s passivity are Alabama’s unborn children, who can now be murdered by having their limbs torn from their bodies while their hearts are still beating.”

In the case (West Alabama Women’s Center v. Miller), Liberty Counsel filed an amicus brief on behalf of the American Association of Pro-Life Obstetricians and Gynecologists and American College of Pediatricians, defending the Alabama law that prohibits dismemberment abortions of live unborn babies based on the medical evidence of their ability to feel intense pain. Liberty Counsel and Alabama’s Pro-Life legislators argue that the scientific evidence supports the assertion that unborn babies feel pain as early as eight weeks gestation.    [Reference: Brandon Moseley’s article “Federal Court Strikes Down an Alabama Abortion Law,” in the Alabama Reporter].

The court used very graphic language to describe the abortion procedure:

“This case involves a method of abortion that is clinically referred to as Dilation and Evacuation (D & E). Or dismemberment abortion, as the State less clinically calls it. That name is more accurate because the method involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child. This is usually done during the 15- to 18-week stage of development, at which time the unborn child’s heart is already beating.

Under the Act, the one performing the abortion is required to kill the unborn child before ripping apart its body during the extraction. [citation omitted] Killing an unborn child and then dismembering it is permitted; killing an unborn child by dismembering it is not. The parties agree that for these purposes an unborn child is alive while its heart is beating, which usually begins around six weeks.”  [See  “How Your Fetus Grows During Pregnancy,” Am. Coll. of Obstetricians & Gynecologists (April 2018)]   Ibid.

The Alabama Legislature did not ban abortions in the state; but rather just this particularly type of abortion. “In this method of ending a pregnancy, dismemberment abortion ‘requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina.’ [Stenberg v. Carhart, 530 U.S. 914, 958 (2000)]. The practitioner then “uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body.”  [Ibid]

Luckily, most of the abortions performed at Alabama’s abortion facilities were done in the first trimester. Only 4% were performed after 15 weeks. For example, in 2017, 6,603 abortions were performed, of which 183 were D&E procedures. Although authorities like to minimize the reality, the number is still heartbreaking.

The comments made by Mat Staver, founder and Chairman of Liberty Counsel, regarding the West Alabama Women’s Center v. Miller decision echo my sentiments exactly and probably those of a great many people.  He said:

“Alabama’s law is a common-sense solution to a barbaric and gruesome procedure. If the vilest criminal has human dignity that prevents cruel and unusual punishment, then how much more should laws protect an innocent unborn child from the most despicable form of torture and death? There are just seven countries in the world that allow children to endure this barbaric procedure and that disgraceful list includes the United States. We must make the womb a safe place again. This case or one like it cries out to the Supreme Court Justices to reverse the horrible abortion decisions. As the court correctly noted, the Supreme Court abortion decisions are an ‘aberration of constitutional law.’ This is true, but they also violate higher law and condone the worst kind of infanticide.”

Similar bans in Kansas, Oklahoma, Louisiana, Texas, and Arkansas have all been blocked when challenged in court. The ACLU is challenging a similar law in Kentucky.

The issue (the constitutionality of such “dismemberment” laws) may not be over, however.  On December 20, 2018, Alabama Attorney General Steve Marshall filed an appeal with the US Supreme Court to review the 11th Circuit’s ruling. Right to Life activists will be watching carefully to see if our new conservative court (perhaps even a “ruthless” court) will agree to hear the case.

You can see from the Roe decision, that by giving women an expansive, unfettered right to terminate her pregnancy (under the guise of “controlling her reproduction”), we have ushered in an era of evil. Since the abortion clinics have opened up, a parade of horribles has ensued.

Because of this parade of horribles and the clear intent on the part of Democrats/progressives/liberals to of protecting this absolute right as against all those horribles, I have to believe that the Roe opinion can be re-visited for a more compassionate, moral, scientific outcome, and yes, constitutional decision.

For years, I have spoken and written about the Roe v. Wade decision (Supreme Court, January 22, 1973, announcing a fundamental right, or “liberty right” for women in aborting their unborn).  I have held the opinion that the decision was perhaps incorrectly decided because its central premise was wrong..  The Supreme Court, including conservative justice Antonin Scalia, made the underlying assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus in writing its Trimester Approach to when a woman has most control over her reproduction. The “Trimester Test” was the approach the Court used in summarizing the “balancing of competing interests” at stake in a woman’s pregnancy – the woman’s interest in controlling her reproduction and what happens in her uterus, the state’s interest in the life of the unborn, and the unborn’s right to the life it was intended to have.  Sadly, the Court, in fleshing out the competing interests in its opinion, made it clear that any threat to a woman’s health in the third trimester (where typically the interests are greatest for the state and for the unborn) outweighs the interests of the other parties. And it explained that the threat need not be medical in nature. The unborn or the pregnancy itself need not pose any physical harm to her. Other types of harm justifying an abortion up until the moment of birth would include emotional, psychological, and even financial. The mere fact that the pregnancy poses stress on the woman would justify an abortion, according to the high Court. That is why Roe v. Wade stands for the general rule that a woman has a constitutional right to an abortion at any time during her pregnancy, for any reason. She has an unfettered right to abort her fetus or her unborn baby…..  she has a right to an abortion on demand.

Anyway, going back to my concern with the Roe v Wade opinion.  I believe the Court used the wrong approach in reaching its opinion. Again, it made the general assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus. Viability means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Today, medical experts believe a fetus is viable at around 24 weeks (which is about halfway in the second trimester).  The proper assessment should have been when the fetus becomes a “life.”  We know mere conception doesn’t equate to life; it merely sets in motion what would become fetal development resulting in a fully-formed baby that the mother welcomes into the world to continue its growth and development outside the womb. We also know that life does not equate to viability because viability just asks when the baby can likely survive outside the womb. Implicit in that definition is that there is already a “life.” It just looks to see how advanced in development that life is.  The unborn cannot live without the protection and life-sustenance from its mother. Similarly, a newborn also cannot live on its own, without the protection and life-sustenance from its parents or other caregiver. A life scientifically comes into being when there is a heartbeat, when the baby has its organs, and when it is nearly completely differentiated so that really all that is needed is more growth and fine-tuning of its life support systems for the outside world. Under this definition, the unborn is a “life” much earlier than viability.

“Life” = “personhood,” and it should be that simple. What kind of society are we when we go out of our way, legally, emotionally, and psychologically to strip certain groups of their personhood and therefore their rights? The most brutal of killers gets our full attention regarding his rights and his place as “a fellow human being.” But the sweetest, most gentle, the purest, and the most helpless are the ones we minimized and disregard. The 8th Amendment is supposedly a testament to our compassion as a civilized society. If that is so, what is the Roe decision and what is New York’s “late-term abortion” law?  I would submit that it is a testament to our savagery and to this the most selfish, self-obsessed, and immoral society. We simply can’t justify these polar extremes of our so-called “civility.”

The key is using “life” as the key determinative is that when there is a “life,” our laws provide protection, including observance of its fundamental rights. I look to the Declaration of Independence which professes:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness….

In other words, the minute an individual is created, he or she is endowed with inalienable rights, including the right to Life. Moreover, government is instituted for the primary purpose of secure those rights. It makes no difference whether that individual is 15 years old, 40 years old, 10 years old, 1 month old, or 20 weeks old. The minute it became a living being, it is understood to be entitled to the most essential of all inalienable (those attaching to our very humanity) rights. Technically, according to the words of the Declaration, the minute a new human being is created (joining of reproductive cells at conception; “conception” comes from “conceived” which means a new life, a new human being, has been conceived).

Therefore, a “person,” for purposes of our Rule of Law and our US Constitution (including the Bill of Rights and the 14th Amendment) includes the unborn.  Again, maybe not exactly at conception and for several weeks after that, but certainly, and clearly, towards the end of the first trimester and the beginning of the second trimester.  And as such, the unborn “life” has the same fundamental rights as the mother. Once the mother allows the pregnancy to reach the point where life has been created, then she holds no greater interest than the interest the unborn has in continuing its development.  In other words, the “competing interests” explanation of a pregnancy shifts greatly. And unlike the Court’s opinion in Roe, where the unborn never was considered a legal “person” in order to take advantage of the rights and liberties enshrined in our Declaration, our Constitution, and our laws and therefore the woman held all the power to decide the unborn’s fate, the approach I believe should have been taken would recognize that the unborn is absolutely a “person” so that a woman does NOT have the unfettered right to abort her unborn, kill it, or otherwise dispose of it.

We can explain the failure of the Supreme Court in Roe using additional legal arguments as well.

The case involved a challenge to a Texas statute that criminalized abortion, which means that Norma McCorvey (aka Roe) filed suit claiming an infringement of an essential (liberty) right protected by the 14th Amendment. Challenges to state law claiming a violation of civil rights or liberty rights recognized by the Bill of Rights are brought under the Due Process Clause of 14th Amendment. Over the years since it was adopted, the Supreme Court has used the Due Process Clause of the 14th Amendment to “incorporate” the liberty rights of the US Bill of Rights as against the states; that is, if the federal government cannot infringe on our religious liberty than neither can the states, if the federal government cannot ban firearms, neither can the states, and so forth and so on.

The 14th Amendment reads:

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.

As the Court had noted, it first had to determine if the unborn are considered “persons” within the meaning of the 14th Amendment. It concluded that they were not.

If the Court would have exercised proper interpretation authority and followed its own established 14th Amendment jurisprudence (precedent), it would have taken an originalist approach to the analysis, and the outcome would have been quite different (although not ultimately providing for the right of women to have an abortion; the decision would have been left to the states themselves).

Under an “originalist” approach, the Court would have had to determine what the word “persons” was understood to mean when the 14th Amendment was written and ratified. “Originalism” is often equated with “Textualism” (where judges look at the meaning of the words and intent at the time they were written)  A honest analysis would have looked not only at the definition of the term “persons” around the time of 1868, but also at society’s view of abortion at that time. In fact, for a claimed right to be covered by the 14th Amendment and hence free from government/state regulation, that right would have had to have been considered an essential liberty right at the time the Amendment was adopted. In other words, the Court should have asked two questions: “What did the term ‘persons’ mean back in 1868?”  And, “Was abortion considered a fundamental liberty right back in 1868?” [That is, the Court should have asked: Was the asserted right to an abortion “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)].

Josh Craddick, a Harvard Law student recently had a Law Review article published in which he looked into the definition of “persons.”  In his article (“Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”), he noted that layman’s dictionaries at the time of the adoption of the 14th Amendment (adopted on July 28, 1868) treated the concepts of humanity and personhood interchangeably. He also consulted William Blackstone’s Commentaries on the Laws of England, a treatise that had profound influence on legal thinking, was used in American law schools, was relied on by the Supreme Court, and continues to be cited even today in Supreme Court decisions. It is cited at least 10-12 times each year. Blackstone expressly recognized that personhood and the right to life existed before birth. He set forth a simple and clear legal standard:  “Where life can be shown to exist, legal personhood exists” (emphasis added). A look back through history shows that there were no laws to specifically protect the unborn prior to “quickening” (when the mother feels the baby begin to kick and move around) and prior to birth, and that makes sense in light of the generally-accepted definition of “personhood.”  A pregnant woman was carrying a “life,” and hence she was carrying a new person.

With respect to the second question (“Was abortion considered an essential/fundamental liberty right back in 1868?”), Craddick researched the societal view of abortion back in the day.  In his article, he showed that many of the states that voted to ratify the 14th Amendment had laws criminalizing abortion. What does that mean?  It seems to confirm that at the time, Americans, state lawmakers, and government officials understood personhood to include the unborn, just as Blackstone defined it.  It shows that society in 1868 viewed personhood and life in much the same way that pro-lifers understand.

Craddick wrote:

When the Amendment was adopted in 1868, the states widely recognized children in utero as persons. Nearly every state had criminal laws proscribing abortion, and most of these statutes were classified among ‘offenses against the person.’ There can be no doubt whatsoever that the word ‘person’ referred to the fetus.” Twenty‐three states and six territories referred to the fetus as a ‘child’ in their statutes proscribing abortion. At least twenty‐eight jurisdictions labeled abortion as an ‘offense against the person’ or an equivalent criminal classification. Nine of the ratifying states explicitly valued the lives of the preborn and their pregnant mothers equally by providing the same range of punishment for killing either during the commission of an abortion. The only plausible explanation for this phenomenon is that the legislatures considered the mother and child to be equal in their personhood. Furthermore, ten states (nine of which had ratified the Fourteenth Amendment) considered abortion to be either manslaughter, assault with intent to murder, or murder.

The adoption of strict anti‐abortion measures in the mid‐nineteenth century was the natural development of a long common‐law history proscribing abortion. Beginning in the mid‐thirteenth century, the common law codified abortion as homicide as soon as the child came to life (animation) and appeared recognizably human (formation), which occurred approximately 40 days after fertilization. Lord Coke later cited the “formed and animated standard,” rearticulating it as “quick with childe.”

Craddick went on to point out that even by the mid-nineteenth century, courts and states alike, were increasingly rejecting the “quickening” standard as scientifically obsolete and replacing it with fertilization. Imagine that !!

Sadly, we all know the reasons the justices of the Supreme Court made that colossally-erroneous assumption that “personhood” means “someone who walks around, who has an independent life outside a woman’s womb.” First, the Court knew that society couldn’t be responsible for all the unwanted births; the burden they would impose on society would break our system of welfare and social services. Second, the case moved up through the court system at a time when the Women’s Rights Movement was fighting for equality in the workplace and in the home, with equality resting squarely on her ability to determine when, or if, she would reproduce. A woman could not control her career, her future, or even her burden at home if she were to be held hostage by her uterus and her God-given ability to bring forth new life. The Court, obsessed with social justice and equality, saw the case as one to give the Women’s Rights Movement what it wanted – the ability to finally be equal in the workforce.

I think the abortion discussion in our country needs to go in this general direction –  going back to a proper, more originalist and textualist analysis of what the right is or what it should be, and to replace the erroneous assumption that a “person” (for 14th Amendment purposes) is one that is capable of living and functioning outside the womb to the definition in place at the time the amendment was adopted, which was the start of life. Only by honoring the definition in place at the time do we know exactly which classes of individuals were intended to be covered by it – to have their rights and privileges acknowledged and protected.  Our national-level pro-life activism needs to go in this direction if we can ever hope of limiting the number of abortions, of limiting the number of unborn babies killed, and of educating our girls and young women on being responsible with their bodies.

As I mentioned earlier, the New York “late-term abortion” law has renewed great controversy on the topic of abortion. The sense that I am getting is that the controversy is not necessarily about women having the right to abort an inconvenient pregnancy but about how expansive that right is and whether it needs reasonable limitations. After all, none of the “actual” rights embraced in our Bill of Rights, such as the right to exercise one’s religion freely, the right of free speech, the second amendment, the fourth amendment, etc are without limitations.

I think a case can be made that the right needs limitations, and if that can be achieved, then women can be both pro-life and pro-choice, if that makes any sense.  If we look at a “Balancing of Rights” approach rather than a “Balancing of Interests” approach – that is, if we balance the rights of the woman to control her reproduction with the big daddy of them all, the right to life, of the unborn child, rather than balance the rights of the woman to terminate her pregnancy with the interest of the state in protecting the pregnancy – then we will come to a point in the pregnancy when the developing fetus becomes a “life.” At that point, society can then legally deny abortions (except for situations such as rape, incest, or risk to the woman’s life).  A woman will enjoy a period of time to decide whether she wants to continue the pregnancy (hence, pro-choice), but if she waits too long, then she will not be able to abort the baby and will not be able to take a life (hence, pro-life).

My point in analyzing the Roe v. Wade case and in writing this article is to start a conversation and a debate that has us siding more with life and in finding ways to cut down on the innocent lives that are taken in the name of “women’s rights.”

With that in mind, I wanted to share some back-and-forth I’ve had with those who don’t exactly think like my on the issue of abortion.  I’ve cut and pasted my comments and the responses I’ve gotten from a social media post on a friend’s Facebook page announcing New York’s “Reproductive Health Act.”

ABORTION ARTICLE - John Tedesco post

MY COMMENT:   I hope the recent news out of New York of a “Late Term Abortion” law that passed, allowing for the termination of an unborn baby up until full term development, shocks your conscience. In a span of just 11 days, we heard national leaders like Rep. Nancy Pelosi and Sen. Chuck Schumer call a border wall to stop the flood of deadly drugs and human trafficking immoral” while an entire state believes it is moral to kill a baby up until the moment it takes its very first breath of air. I struggle, as a human being and as a woman, to find any logic remaining in this country. If any of our legislatures only had the decency to pass a law to define life, even if it is at 8-12 weeks, then the number of abortions would be greatly decreased.  That’s all it would take to stop the wholesale killing of the unborn. But no legislature, including the US Congress, seems willing to do it. It would force women to make the decision to abort the fetus inside them very early on, hopefully before a heartbeat and the commitment to a human life. I don’t think I’m unreasonable or out of line in taking this position.

VINNY (responding to me):  It’s a woman’s body. She should have complete control over it.  It’s not a hard concept.

MY RESPONSE (to Vinny):  That’s a very selfish and narrow-minded way to look at it. Plus it totally ignores the role women play in the grand scheme of things, as created by God for the primary purpose to propagate the human race.  Democrats and liberals refer to abortion in terms of “reproductive health” and as a “woman’s right to control her reproduction.”  It is never put in terms of what it does to the developing fetus or the unborn child, which is death. Why isn’t the bill titled “The Unborn Have no Right to Life” Law?

VINNY (responding to me):  A woman needs to have the ability to control when she becomes a mother. A man never has to be burdened by a baby, and neither should a woman.

MY RESPONSE (to Vinny):  I know this sounds absolutely archaic to liberal women, but a woman has always had the right to control her reproductive capability. She has the right to keep her legs closed during her fertile days; she has the right to say no. She has the right to take contraceptive pills or use contraceptive devices. And if she uses neither, then she has the right to demand that her sex partner wear a condom or forego fooling around. All of these PREVENT conception and allow a woman to control her reproduction rights. All of these PREVENT the immoral act of killing a living fetus on its way to developing into a human being. Again, I know this sounds archaic and to the liberal woman, presents too many barriers to a loose and casual lifestyle and to spontaneous sex with someone they just met. But in the balance of things – prevention vs. harm – I think we can all agree that prevention is the best course. God and nature gave women the blessing of giving life and propagating the species; He didn’t intend for her to have the unfettered right to fornicate without consequences. The consequence is the greatest privilege of all — to create new life. It’s so sad so many women think of it as a nuisance and a burden..  as a curse.

COMMENT from Konabird2:  As one individual said last night, “A clump of cells feels no pain.” How did we get to the point where as refer to a baby as merely “a clump of cells” ?

MY RESPONSE (to Konabird2):  To a woman or girl who doesn’t want the pregnancy, what she is carrying is just “a clump of cells.”  To a woman who wants the pregnancy, the minute she sees that blue line, she immediately begins to call her fetus a “baby.”  It all depends on the woman’s intention with her pregnancy.

COMMENT from Sandy S:  This is a dishonest strawman argument. The two circumstances are entirely different save chemicals are involved in both and in cleaning toilets and killing germs.. Let’s talk about when a person is a person or how do we take care of all the unwanted  children that no abortion laws are going to have to be raised. Those are real questions

MY RESPONSE (to Sandy S):  Sandy,  I agree with you that we can’t take care of all the unwanted children that, without abortion, would be born. They would be born to those that don’t want them, can’t take care of them, are mentally and psychologically unfit to raise them, or who will simply abuse and ignore them. In all of these situations, the child will not be raised properly and will likely be “damaged goods.” They will also be born to those who can’t afford to raise them, which will in turn become another burden on taxpayers. Taken together,  if all the babies conceived were to be born our resources and our services would be burdened to the point where it fatally strains our system. This was actually predicted by economists Cloward and Piven many years ago. My point is that women MUST do their part in preventing the killing of babies by preventing the creation of them in the first place. They have it within their power to do so. We can’t accept the notion that just because we can’t provide for all the unwanted babies that we should allow them to be killed at any time up until the moment of their birth.

Sandy S (responding to me):  Is fetal heartbeat the gauge of living. When the child cannot survive without the mothers body?  Is life only at birth when a child can breathe on its own? I’m not sure if i want government making that decision anyway, as the mother is closest and most involved with the real consequences of the decision. Shouldn’t it be up to her alone? Unfortunately, lots of people want to step in and tell others what to do, how to live and love, how to die, and who to worship. It’s kind of amazing how important some people think their opinion should be held in absolute regard.

MY RESPONSE (back to Sandy S):  I think science can help make the decision. A woman who wants an abortion bad enough will not be fair to the life inside her. My point is that having an honest debate on a law to define life (in order to stop the killing of the unborn) is a better route by far than allowing the torture and killing of an unborn child up until the moment he/she takes it first breath. It is a negotiated solution to a problem that as it stands now totally ignores the rights of a newly developed human being.

COMMENT from Bloody Roses:  What about rape and sexual abuse? Also, not all sexual relations are for reproductive reasons…  Woman are allowed sexual pleasure and orgasms too.

MY RESPONSE (to Bloody Roses):  Rape and sexual assault get special consideration, as they have always gotten special consideration and exceptions in society. No one is denying women  are allowed sexual pleasure…  this issue isn’t about that. It’s about balancing the desires and sexual freedom with nature’s limits on, and purposes for, women I order that we don’t unnecessarily kill the unborn.

COMMENT from Grace Madej:  But I thought y’all were AGAINST birth control?

MY RESPONSE (to Grace Madej):  WHO is against birth control??  Are you talking about strict Catholics??  I happen to be Catholic but I’m also a realist. I think we absolutely need birth control in our society. We can’t be naive to think we live in a world long gone where women save themselves for their husbands and welcome every act of sex as a chance to have another child. If we are naive to think birth control is a sin, then we have to accept the far greater sin of abortion and the chance that a good percentage of those abortions were performed on fully-formed living, yet not ready to live out of the womb, human beings. I’m not naive about conception and fetal development . I know that a fertilized egg goes on to become a mass of cells and even up to a few weeks it is not fully committed or destined for life. I’ve had 3 miscarriages, including one in my second trimester, so I know that not every conception event equals life. My heartfelt point and goal is to see our national conscience relieved by putting more pressure on women to do the right thing and if they believe a pregnancy is wrong for them and that they can’t be the parent God and nature intended them to be (or they don’t want to carry a baby to term and give it up for someone else to love), then  they should make that decision very early on. I think that’s where our counseling and our conversations about abortion should be focused. It’s just my opinion, of course.

 

We need to have conversations.  We need to find common ground.  We can’t continue to offend so greatly our national conscience.

One final thing to wrap your mind around —  The same state (New York) that has just passed the “late-term abortion” bill has abolished capital punishment. The state says it is unconstitutional to kill a person guilty of a capital offense but constitutional for a woman to kill her baby.

The state can’t impose the death penalty on even the most vile and heinous of criminals, but a woman can impose the death penalty on the most innocent and harmless of human beings. “You are not allowed to give a lethal injection to convicted serial killers, pedophiles, rapists, school shooters, or any other species of monster. But you can give a lethal injection to an infant. Indeed, you can only give lethal injections to infants in New York. The crime of child rape will not earn you the needle. The crime of being conceived in the wrong womb might. It is a capital offense, and you may well be made to suffer dearly for it.”  (Matt Walsh).

The hypocrisy is unreal. But that’s what defines progressives and extreme women’s rights supporters.

 

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References:

Roe v. Wade, 410 U,S. 113 (1973), Majority Opinion, written by Justice Harry Blackmun, Cornell Law Library –  https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZO

Roe v. Wade, 410 U,S. 113 (1973), Dissenting Opinion, written by Justice William Rehnquist, Cornell Law Library –  https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZD

Roe v. Wade, Dissenting Opinion, by Justice Byron White –  https://en.wikisource.org/wiki/Roe_v._Wade/Dissent_White   and https://www.scribd.com/document/217330653/Dissent-White

West Alabama Women’s Center v. Thomas Miller, 11t Circuit Court of Appeals opinion –  http://media.ca11.uscourts.gov/opinions/pub/files/201715208.pdf

Laurie Higgins, “31 States Permit Full-Term Abortions,” Illinois Family Institute, January 28, 2019.  Referenced at:  https://illinoisfamily.org/life/31-states-permit-full-term-babies-to-be-killed-in-the-womb-for-virtually-any-or-no-reason/

Joshua J. Craddick, Joshua J. Craddock, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?,” Harvard Journal of Law and Public Policy, Vol. 40, No. 2 (2017).  Referenced at:  file:///C:/Users/diane/Downloads/SSRN-id2970761.pdf    [Abstract:  What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?  The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term “person”? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the meaning of the Fourteenth Amendment.]

Calvin Freiburger, “Article in Harvard Law Journal Concludes: The Preborn Child is a Constitutional Person,” Live Action, June 1, 2017.  Referenced at:  https://www.liveaction.org/news/landmark-harvard-essay-preborn-child-constitutional-person/

Steven Ertelt, “You Can’t Give a Lethal Injection to Murderers in New York, But You Can Give One to an Unborn Baby,” LifeNews.com, January 24, 2019.   Referenced at:  https://www.lifenews.com/2019/01/24/you-cant-give-a-lethal-injection-to-murderers-in-new-york-but-you-can-give-one-to-an-unborn-baby/?fbclid=IwAR1_9ePUFqddWs1TwqdaoVFNkW06v9xqJXkja9Y4yPLfYVhSbZLHOKi2K2Q

Matt Walsh, “WALSH: You Can’t Give A Lethal Injection To Criminals In New York But You Can Give It To Infants,” DailyWire, January 23, 2019.  Referenced at:  https://www.dailywire.com/news/42538/walsh-you-cant-give-lethal-injection-criminals-new-matt-walsh?utm_source=facebook&utm_medium=social&utm_campaign=mattwalsh

VIDEO:   Dr. Anthony Levatino, former abortion doctor, explains that abortion is never medically necessary to save a woman’s life during pregnancy – https://www.youtube.com/watch?time_continue=4&v=ysl1tRnk-ig   [Let me illustrate with a real-life case that I managed while at the Albany Medical Center. A patient arrived one night at 28 weeks gestation with severe pre-eclampsia or toxemia. Her blood pressure on admission was 220/160. A normal blood pressure is approximately 120/80. This patient’s pregnancy was a threat to her life and the life of her unborn child. She could very well be minutes or hours away from a major stroke. This case was managed successfully by rapidly stabilizing the patient’s blood pressure and “terminating” her pregnancy by Cesarean section. She and her baby did well. This is a typical case in the world of high-risk obstetrics. In most such cases, any attempt to perform an abortion “to save the mother’s life” would entail undue and dangerous delay in providing appropriate, truly life-saving care. During my time at Albany Medical Center I managed hundreds of such cases by “terminating” pregnancies to save mother’s lives. In all those cases, the number of unborn children that I had to deliberately kill was zero.]

CHART:  State-by-State Later Term Abortion Policies –  https://www.kff.org/womens-health-policy/state-indicator/later-term-abortions/?currentTimeframe=0&selectedDistributions=state-prohibits-some-abortions-after-a-certain-point-in-pregnancy–threshold-for-later-term-abortions–later-term-abortion-permitted-when-pregnancy-threatens-womans&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D   [By the way, it appears that North Carolina, it appears from the chart (updated 2018) that North Carolina permits a later-term abortion “for life and health,” which essentially means that a woman can terminate her pregnancy at any time for any reason, since the Supreme Court has interpreted “health” to mean any number of things – physical, emotional, psychological, financial, familial, and for age or for stress. North Carolina joins 23 other states that apply this lower standard for a later-term abortion – Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New York, Ohio, Pennsylvania, Tennessee, Utah, Virginia, Washington, Wisconsin, and Wyoming. Compare that standard to the more strict one, which permits a woman to have a later-term abortion “for life and physical health.”  Sixteen (16) states have this more strict standard – Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Wyoming.  There are 3 states that permit a later-term abortion only when the pregnancy poses a direct risk to the mother’s life. Those states are Idaho, Michigan, and Rhode Island.]

Alabama “Unborn Child Protection from Dismemberment Abortion” Act (SB363) –  https://rewire.news/legislative-tracker/law/alabama-unborn-child-protection-dismemberment-abortion-act-sb-363/

Brandon Moseley, “Federal Court Strikes Down an Alabama Abortion Law,” Alabama Reporter, August 23, 2018.  Referenced at:  https://www.alreporter.com/2018/08/23/federal-court-strikes-down-an-alabama-abortion-law/

GHI Breborowicz,” Early Pregnancy: Limits of Fetal Viability and Its Enhancement,” NCBI (National Center for Biotechnology Information), January 5, 2011; pp. 49-50.  Referenced at:   https://www.ncbi.nlm.nih.gov/pubmed/11753511     [“Viability” of a fetus, or “fetal viability,” means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Viability exists as a function of biomedical and technological capacities, which are different in different parts of the world. Consequently, there is, at the present time, no worldwide, uniform gestational age that defines viability. Viability is not an intrinsic property of the fetus because viability should be understood in terms of both biological and technological factors. It is only in virtue of both factors that a viable fetus can exist ex utero and thus later achieve independent moral status. Moreover, these two factors do not exist as a function of the autonomy of the pregnant woman. When a fetus is viable, that is, when it is of sufficient maturity so that it can survive into the neonatal period and later achieve independent human status given the availability of the requisite technological support, and when it is presented to the physician, the fetus is a patient. In the United States viability presently occurs at approximately 24 weeks of gestational age (Chervenak, L.B. McCullough; Textbook of Perinatal Medicine, 1998)].

“Can a Fetus Feel Pain?,” NCBI (National Center for Biotechnology Information), April 15, 2006; 332 (7546): 909–912.  Referenced at:  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1440624/

“How Your Fetus Grows During Pregnancy,” American College of Obstetricians & Gynecologists (ACOG),  (April 2018).  Referenced at:   https://www.acog.org/Patients/FAQs/How-Your-Fetus-Grows-During-Pregnancy?IsMobileSet=false

Traci DeVette Griggs, “New York’s War on Children Hits a New Low on Anniversary of Roe v. Wade,” Family Policy Facts (NC Family Policy Council), January 23, 2019.  Referenced at:  https://www.ncfamily.org/new-yorks-war-on-children-hits-a-new-low-on-anniversary-of-roe-v-wade/

Roe v. Wade, Texas Bar –  https://www.texasbar.com/civics/High%20School%20cases/roe-v-wade.html

Roe v. Wade (1973), as explained by Clarke Forsythe, Senior Counsel for Americans United for Life (AUL) and Melissa Murray, Berkeley Law School professor.  [Clarke Forsythe is also the author of the book Abuse of Discretion: The Inside Story of Roe V. Wade, and Ms. Melissa Murray in addition to being a law school professor, also as the Faculty Director for the Center for Reproductive Rights and Justice].  Referenced at:  https://www.khanacademy.org/humanities/ap-us-government-and-politics/civil-liberties-and-civil-rights/amendments-due-process-and-the-right-to-privacy/v/roe-v-wade    [See Appendix below for a transcript of this video]

 

APPENDIX:  (Transcript of the Khan Academy Video, as modified by Diane Rufino, to add more information)

Question:  “Mr. Forsythe, could you set the stage for us a little bit. What was going on during this time period?”

Mr. Clarke:  “Well, there were efforts in the 1960s to repeal abortion laws in the individual states and when abortion activists were dissatisfied with those efforts, they decided to go into the courts. And around 1969, they took some cases into the courts and ultimately, there were 20 or more cases challenging state laws in the courts between 1969 and 1973. Roe vs. Wade was the case from Texas.”

Ms. Murray:  “Roe was litigated in the early 1970s. It was a period of enormous change in the United States. We were beginning to see beginnings of the women’s rights movements, the beginning of the gay rights movement, and of course, the civil rights movement of the 1960s was moving in a lot of different directions. At the time, the question of abortion was very much on the minds of lots of different state legislatures because there had been moves to liberalize much of the criminal law that dealt with matters of sex and sexuality, including abortion. At the time, four states, New York, Alaska, Hawaii, and I believe Washington, had actually taken steps to repeal their laws criminalizing abortion. And about 13 other states had taken efforts to liberalize their laws criminalizing abortions, but in number of other states, around, at least 20 or more, there remained on the books, laws that absolutely criminalized abortion, except in situations where it would be necessary to preserve the woman’s health or life, or in cases of rape, incest, or fetal anomaly.”

Mr. Clarke:  “Abortion rights attorneys sought plaintiffs who could challenge the Texas law and the Georgia law [ie,  They were looking for a “test case”]. There were two attorneys from Texas who found Norma McCorvey, who they gave the pseudonym of Jane Roe, for purposes of protecting her privacy.”

Ms. Murray:  “And so Norma McCorvey brought this case. She was an unmarried 22 year old woman living in Dallas County, Texas, who found herself pregnant for the third time. She gave birth to her first child, a daughter, and  ultimately signed over custody to her mother to raise her since her life wasn’t very stable (she was moving around a lot). She gave her second child up for adoption. When she found herself pregnant for a third time, she wasn’t willing to do either of these things again and so she simply wanted to safely and legally terminate her pregnancy. But this was impossible under the Texas law. Texas had, since the 19th century criminalized abortion in all cases except those instances where it was necessary for the health and safety of the mother. And so she then was faced with the question of what was she going to do. And the only thing she could think to do then (that is, what her lawyers thought, and sought, to do), was to challenge the law as being unconstitutional. So she was put in contact with Sarah Weddington and Linda Coffee, two young women who had recently graduated from law school. Sarah Weddington was only 26 years old at the time she helped Norma McCorvey bring this case. They sued the State of Texas to challenge the constitutionality of Texas’ criminal abortion ban.”

Mr. Clarke:  “But as the history shows, there was no trial, there was no evidence, there were no expert witnesses. Jane Roe never testified. As we all know, she never got an abortion. She gave birth and placed her child for adoption.”  [In the years after the decision, Norma had a complete change of heart and became a strong opponent of abortion].

Question:  “Okay, so Roe was Norma McCorvey. Who was Wade?”

Mr. Clarke:  “Henry Wade was the District Attorney for Dallas, Texas, where the case was filed in Federal District Court.”

Questions:  “So the case eventually made it to the Supreme Court.  How did the Court rule?”

Mr. Clarke:  “The Justices declared the Texas and Georgia laws unconstitutional and then rewrote a national law, a national abortion law, in which they said that the states could not regulate or limit abortion in the first trimester. They could regulate more in the second trimester, the second three months of pregnancy, to protect maternal health and they could regulate in the last three months of pregnancy, the last trimester, to protect maternal health or fetal life. The attorneys for the plaintiffs claimed that abortion fell within the right to privacy, even though privacy is not in the text of the Constitution, they said it was derived, or based in the language of the 14th Amendment of the Constitution even though the 14th Amendment doesn’t say anything about abortion, or the unborn child; the 14th Amendment just uses the term liberty. Ultimately the Court said that the right to abortion is part of the right to privacy based on the 14th Amendment.”

Question:  “That’s very interesting. I’ve learned through many of these interviews, that this right to privacy is something that is never actually explicitly stated throughout the Bill of Rights, but there’s a penumbra of privacy that you see in a few ways. What was the Court’s reasoning that the right to an abortion could fall under this zone of privacy?”

Mr. Clarke:  “If you read the Roe opinion – specifically, on page 152 of the Roe opinion – Justice Blackmun starts out by citing a string of prior Supreme Court cases, beginning about 1910, which elude to a right of privacy which undergirds other rights in the Bill of Rights. Blackmun argued that these cases lead to a general right of privacy, and that this right of privacy is broad enough to encompass a woman’s right to an abortion. But then four pages later, on page 156, Blackmun turns around and says that abortion is inherently different from all those other cases that make up the right of privacy (including the right to use contraception and contraceptive devices to control fertility and reproduction, Griswold v. Connecticut (1965) because it involves the taking of a life.”

Ms. Murray:  “The right of privacy doesn’t actually come from Roe vs. Wade. It comes from a case decided about eight years earlier, in 1965, called Griswold vs. Connecticut.  The issue in the Griswold case was whether a Connecticut state statute that made it a crime to use contraception or even to counsel patients about contraception violated the Constitution. Planned Parenthood League of Connecticut opened up a birth control clinic in New Haven, Connecticut. They were promptly arrested and the clinic was closed. They challenged the statute, arguing that the right to use contraception was a fundamental individual right. Furthermore, they argued that since individuals have the right to use contraception, doctors also have the right to advise patients about such. Patients are entitled to be informed about their medical choices. The Supreme Court, in an opinion authored by Justice William Douglas, agreed with the clinic. In the Griswold case, the Court articulated for the first time this right of privacy. The opinion explained that while the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First (the right to conscience created by the right to worship freely), the Third (the right to be free in one’s home from the quartering of troops), the Fourth (the right to be safe and secure in one’s own person, one’s home, and with one’s effects from unreasonable government searches and seizures), and the Ninth Amendments create the right to privacy which encompasses marital relations. Douglas, writing for the majority, indicated that this right had actually ‘been percolating in the Court’s decisions for some time.’”

Question:  “Did any of the Justices dissent in the Roe decision and if so, why?”

Mr. Clarke:  “Well there were two dissents, one by Justice White and the other by Justice Rehnquist. Justice White said that the Court was engaging in raw judicial power (ie, judicial activism) and that the Justices did not have the right or the authority, on account of the 10th Amendment, to strike down the abortion laws of the individual states: it could only rely on a doctrine called ‘substantive due process.’ The justices were addressing the assertion that a woman’s right to an abortion is a fundamental right and hence, under the Due Process Clause of the 14th Amendment, it cannot be violated or burdened.  The Due Process Clause says that no person can be deprived of “life, liberty, or property, without due process of law.” However, there are clear limits as to which individual “liberty” rights are imposed on a state (that is, those which it is obligated to respect and refrain from regulating). In in 1934, the Supreme Court held that due process is violated “if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”  In other words, as explained further by the Court, the right must have been recognized as a liberty right (essential to our sense of ordered liberty) at the time of the adoption of the 14th Amendment to be recognized by its Due Process Clause. Justice Rehnquist said that there is clear historical evidence that many states passed abortion limits and prohibitions precisely at the time of the framing of the 14th Amendment in the 1860s and leading up to 1868, which is when the Amendment was added to the Constitution. In other words, this history was evidentiary history. As such, this history of state limits and prohibitions on abortion actually served to contradict the petitioner’s (the birth control clinic’s) assertion that the 14th Amendment was intended to include a right to abortion.”

Question:  “It appears that Roe is not the last word on abortion in the United States. There have been several later cases that were important to this as well, like Planned Parenthood vs. Casey, or Whole Woman’s Health vs. Hellerstedt. Can you talk a little bit about how those cases have altered the scope of the right to abortion?

Ms. Murray:  “As soon as Roe was decided in 1973, there was an effort to sort of roll it back and hem it in a little bit. Frank Church, who’s a Senator from Idaho, announced ‘The Church Amendment,’ which basically says that physicians don’t have to perform abortions if doing so would conflict with their conscience or conscientious beliefs. So we see one way to limit the reach of this right – by limiting the number of providers who are available to offer abortions.”

Mr. Clarke:  “In fact, the Court has kind of cut back on Roe vs. Wade in four cases over the years. But then in 2016, it appeared to return to its original position that the state nor federal government would tolerate any impermissible burden to a woman’s right to an abortion:

  • Harris vs. McRae [A 1980 case in which the Court acknowledged that federal funding could be limited for abortions. The Court held that states participating in the Medicaid program (established under Title XIX of the Social Security Act) were not obligated to fund medically necessary abortions. Title XIX of the Social Security Act was enacted to provide federal financial assistance to states that chose to reimburse certain costs of medical treatment for needy persons. Beginning in 1976, Congress passed a number of versions of what was known as the “Hyde Amendment” which severely limited the use of federal funds to reimburse the cost of abortions under the Medicaid program. Cora McRae, a pregnant Medicaid recipient, challenged the Hyde Amendment, filing suit against Patricia R. Harris, the US Secretary of Health and Human Services. The Supreme Court found that a woman’s freedom of choice did not carry with it “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices”].
  • Planned Parenthood vs. Casey [A 1992 case in which the Supreme Court upheld various restrictions to an immediate abortion (an “abortion on demand”). The Pennsylvania state legislature amended its abortion control law in 1988 and 1989, to required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. In a bitter, 5-to-4 decision, the Supreme Court again re-affirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the Court imposed an articulable standard to determine the validity of laws restricting abortions. The standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden” on a woman’s right to an abortion, which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, the only provision to fail the undue-burden test was the husband notification requirement]. Other similar cases involving restrictions on immediate access to an abortion reached the same conclusion.
  • Whole Woman’s Health versus Hellerstedt [In 2016, the Supreme Court flipped.  In this case, the Supreme Court was asked to rule on the constitutionality of a Texas law that put limits on physicians performing abortions and on the abortion facilities themselves. A group of abortion providers sued the state. In a 5-3 opinion authored by Justice Stephen Breyer (remember, Justice Scalia had passed in February or 2016 and so it was only an 8-member Court at the time) the Supreme Court noted that the provisions that were challenged did not actually offer the medical benefits that they claimed to offer. Hence, as a matter of constitutionality, they were insufficient to justify the burdens on access that each of those provisions imposed.

Question:  “What do you see as the future of Roe vs. Wade?”

Mr. Clarke:  “Well, the Supreme Court has failed as the national abortion control board. It cannot monitor abortion. It can’t intervene, it can’t regulate or legislate itself, it can’t act as public health administrators, and it can’t investigate. And so I believe it’s absolutely certain that the Court, sooner or later, will have to overturn the Roe decision because of this failure and return the matter to the states.”

Ms. Murray:  “Remember, when they were talking about repealing or reforming those abortion laws we referred to earlier, from the 1960s and 70s, it was connected in a big way to the growing women’s rights social movement. Perhaps the most critical question of that movement asked ‘What will be the role of women going forth in a modern society.’ When the question of contraception came before the Court in 1965, one of the questions was whether women should be allowed to control her reproduction and to choose when to have children….  Should she be allowed to control the timing of births in order to accommodate her career. It’s the same issue that came up in the abortion debate. If women were to have equal opportunities in the workforce, they would need to determine when they would become mothers and to determine the timing of their children. They would also need the flexibility to determine if they even wanted a child in the first place.”

Question:  “So we’ve learned that the decision to legalize abortion in Roe vs. Wade was based on the right of privacy, which the Supreme Court has inferred from the Due Process Clause of the 14th Amendment. Since the Roe decision, a number of other cases have set limits on abortion and abortion clinics. Clarke Forsythe argues that the Supreme Court has failed in regulating abortion and that the issue should be returned to the states. Melissa Murray, by contrast, suggests that the decision in Roe is crucial to giving women the freedom to join the workforce and make decisions about when to have children.

To learn more about his case, visit the National Constitution Center’s Interactive Constitution and Khan Academy’s resources on US Government and Politics.

The Persistent Racist Accusations of the NC NAACP and Its Continued Attempts to Frustrate a Voter ID Law in North Carolina

Rev. Anthony Spearman - NC NAACP (photo courtesty of Virignia Pilot)

(Photo source: Associated Press and the Virginian Pilot)

by Diane Rufino, December 4, 2018

On November 6, an amendment to the North Carolina constitution requiring voters to present a photo identification for voting in person (the “Voter ID” amendment) passed with 55 percent support. The language of that amendment, per House Bill 1092 (H.B. 1092) which gave rise to the amendment, states: “Every person offering to vote in person shall present photo identification before voting in the manner prescribed by law.”

The next step in the process, of course, is to back the amendment up with appropriate legislation. The NC General Assembly officially began that task when it reconvened in Raleigh this week.

With this in mind, we can predict what the North Carolina NAACP, other black activist groups, and Democrats/liberals will do —  challenge any proposed legislation as too strict, too burdensome, and too discriminatory on black voters. Any law will be challenged as an orchestrated attempt to disenfranchise black voters at the ballot.  It has already filed a motion for Summary Judgement to declare all four of the adopted amendments void as being the product of an illegal general assembly (The NC NAACP holds that the election of the 2017-2018 General Assembly body was the product of racially-motivated gerrymandering and hence illegal).

On November 15, Reverend T. Anthony Spearman, the head of the NC NAACP held a press conference and outlined the group’s opposition to a photo ID law.  He said: “The North Carolina NAACP calls on all people of good will to attend the ‘All Roads Lead to Raleigh’ rally on November 27 as we prepare for a usurper general assembly which came to power illegally through racially-discriminatory maps and which will meet in Raleigh in a lame-duck special session to make a final effort to enshrine discrimination in our laws.”

He said the proposed amendments which were on the ballot on November 6 were “misleading and unlawful” and “forced upon North Carolina” by an illegal general assembly.

He continued:

“We will continue to fight the anti-democracy racist Photo ID law and its attempt to suppress black votes. A Photo ID discriminates against blacks, Hispanics, people of color, immigrants, and veterans. These people cannot be disenfranchised from their rightful access to the ballot box. Democracy requires that they have access to the ballot box.

History teaches us, and our hearts know it to be true – morally and constitutionally and practically that North Carolina is trying once again to suppress the votes of black people. I speak to our history……

Even before the ink was dry on President Grant’s clear signature on the 15th constitutional amendment on March 30, 1870, the slaveholders of North Carolina and the other ten treasonous states who declared war on the red, white, and blue flag and its government, had met in their lily-white caucuses to design schemes to deny and abridge, to suppress and gerrymander the black vote power down to nothing. Like today, in many NC counties, black voters were in the majority and anyone who could count could understand that if people voted by their racial category, the white man was going to lose. Like today, Mr. Berger and Mr. Moore hide in their lily-white caucus in our people’s house, and plan, with all their tricks, how to ram thru legislation and over-ride vetoes. Their motivations are clear. Their intent is to intimidate, trick, and confuse poor black voters…. “

He continued:

“The 15th Amendment states clearly – ‘The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” House Speaker Moore, Senator Berger… What is it about the 15th Amendment’s clear guarantee that you don’t understand?  Perhaps we should hang the 15th Amendment high on a banner outside the lily-white caucus room in which you scheme up your scams. Will you have your police arrest us for holding up the Constitution, which you purport to love? The US Supreme ruled twice, in cases our organization brought, that the Photo ID legislation that you all passed (obviously talking to the NC General Assembly Republicans) was intentionally racist, ‘targeting voters of color with surgical precision.’ (quoting from the decision of the 4th Circuit’s 2016 opinion). You have contemptuously ignored the court’s ruling.

The second sentence of the 15th Amendment is even more elementary than the first. It reads: ‘The Congress shall have power to enforce this article by appropriate legislation.’  In 1965, Congress authorized the Voting Rights Act and re-authorized it three times. Since last Tuesday, many believe the votes are there to pass the bill (the Photo ID bill) that was stalled in the house. Thank God. The House used every trick I the book to abridge, curtail, trick, suppress, supplant, scare, intimidate, humiliate, and violently kill people, characterize them as felons, frame them as felons, imprison them as felons, and create impossible barriers to register – such as finding and producing birth certificates when high proportions of older black voters today were born with midwives with no birth certificates at all.

Even before the ink was dry on President Grant’s clear signature on the 15th constitutional amendment, sore-loosing slaveholders began organizing a defeated confederate army into secret political societies. In North Carolina, not far from here, in Alamance County, Colonel Sanders, from Chapel Hill, shed his gray uniform and donned a silly-looking white sheet to ride with burning sticks. That being in the White House and Nazi groups were particularly upset when black and white neighbors came together and began challenging the fake history that glorifies the statues of Robert E. Lee.  Perhaps it would be worthwhile to erect statues of Ulysses S. Grant across the South since many of our neighbors and students don’t seem to know who won the war to abolish slavery…….”

Wow, what a mouthful of racism….   So much hatred oozing from his words.

NOTE:  Spearman was absolutely INCORRECT (and perhaps even intentionally misleading) in his claim that the US Supreme Court has ruled on the NC Voter ID law. The Supreme Court DECLINED to look at the law (see later).

Well, at least we know now that the NAACP, with its extreme racist political position and its toxic, offensive, racist, and hate-filled rhetoric, is once again hoping to derail honest intentions to ensure honesty and integrity in North Carolina elections and once again framing the initiative (voted on by a majority of the voters in NC) as one pursued by Republicans for the purpose of intentionally disenfranchising blacks. Its intent is clear – to fight a restrictive Photo-Voter ID law.

And keeping its word, the NC NAACP held its protest beginning in the morning of November 27 (as the special lame-duck session of the NC General Assembly met to take care of business) on the Bicentennial Mall, headlined by its head, Rev. Spearman, and Rev. William Barber. In keeping with his rhetoric of November 15, Spearman shouted these words: “Senator Berger, Speaker Moore, what is it about that clear guarantee in the 15h Amendment that you cannot understand?”

Spearman thinks the racially-divided South of the Jim Crow era and pre-Civil Rights era has never ended. He needs a reality check. Sure, racism existed for a long time in our country. No one can deny that and no one does. But to think that it exists on a level even close to what it did back during the Jim Crow era and even up until the early 1960’s is sheer dishonesty. Although it took far too long for blacks to be recognized with full civil rights, the federal government not only stepped in to solve the problem but it went far beyond, granting all kinds of special protections, government over-sight, court orders, and affirmative action programs to remedy generations of past discrimination. Every race was discriminated at some point in our 20th century history (including Italians, Irish, Chinese, Middle-Easterners – all facing employment practices that excluded them from being hired. All faced horrible stereotypes which translated into the government intentionally limiting their numbers or banning them through our US immigration laws). Yet only one race has received and continues to receive special protection. Just look at all the federal and state laws that protect blacks and punish employers, schools, public accommodations, etc who attempt to discriminate against them. There are even laws that make it particularly easy to sue on the basis of racial discrimination. (When whites sue for discrimination, including when they are discriminated against in their application to universities in favor of blacks who are far less qualified, they are told that there is no law that protects them and hence, those schools are given great latitude and deference as to what they choose to do in reviewing and accepting applicants).  Only one race believes it holds the copyright on discrimination and disenfranchisement.

Writer and journalist Rachel Lu (of The Federalist) is tired what she sees as constant, unfounded accusations of racism from the left. She explains: “Liberals need racist foes to vanquish. Most of the time they have to resort to finding them where they obviously aren’t there.”  What I think she means is that accusations of racism by Democrats and other leftist groups are means to an end.

We see how racial discrimination has been dealt with in employment and public accommodations, so let’s look at how race influences things these days in other areas that really matter:

A 2005 study by Princeton sociologists Thomas J. Espenshade and Chang Y. Chung compared the effects of Affirmative Action on racial and special groups at three highly selective private research universities, including Harvard University. The data below, which is from the study, represents admissions disadvantage and advantage in terms of SAT points (on the old 1600-point scale):

Whites (non-recruited athlete/non-legacy status): 0 (control group)

Blacks: +230

Hispanics: +185

Asians: –50

Recruited athletes: +200

Legacies (children of alumni): +160

In other words, whatever the SAT test score that a white applicant received, the university judges that student and weighs his or her application exactly on that score. Whatever SAT score a black applicant received, the university automatically adds 230 additional points to the score before that applicant’s application is reviewed and judged and compared to other applicants. Hispanic applicants have their SAT scores upgraded and recruited athletes as well (and legacies, but we all kinda suspected that). Universities (again, at least the top private universities which were the target of the study) punish Asian applicants by automatically subtracting points from their earned SAT scores before reviewing their applications.

In 2009, Espenshade and researcher Alexandria Walton Radford, in their book No Longer Separate, Not Yet Equal, examined data on students applying to college in 1997 and calculated that Asian-Americans needed nearly perfect SAT scores of 1550 to have the same chance of being accepted at a top private university as whites who scored 1410 and African Americans who got 1100.

After controlling for grades, test scores, family background (legacy status), and athletic status (whether or not the student was a recruited athlete), Espenshade and Radford found that whites were three times, Hispanics six times, and blacks more than 15 times as likely to be accepted at a US university as Asian Americans.

It’s hard for most Americans to understand the notion that blacks are insidiously discriminated today in American society.

President Obama signed two federal orders, one in 2011 and another in 2016, which strengthened the ability to use race-related affirmative action to enroll in elementary and secondary education, as well as an Executive Order to require schools to ease off on punishing blacks in their school discipline policies (Obama assumed that since blacks were disproportionately the target of high school disciplinary action, the policies or the school administrators must be racist]. President Trump rescinded the federal orders.

The NC Voter Integrity Project, in talking about cases of voter fraud in North Carolina, recalls the incident where a black woman voted multiple times. No one wanted to say anything or call her out on it because they were afraid it would create a scene. Finally, on the third or fourth time voting, one poll worker finally questioned her. She immediately started screaming “They are trying to disenfranchise my vote!” She said she was voting for her black neighbor. The poll officials essentially did nothing; she was told to come back with her neighbor. As it turned out, she HAD voted multiple times, she LIED and DECEIVED the poll officials, the poll officials CHOSE to look the other way and ignore the fact that she voted illegally, and poll officials DECLINED to go to the officials about what she had illegally done. Once that brave poll worker left, she could continue to keep voting. (The last attempt at voting, she gave the name of her neighbor, a man).  Imagine if a white man had claimed: “I’m white and they are trying to stop me from voting.”  What do you think the outcome would be?  And people wonder why a photo ID is absolutely necessary.

Again, it’s hard for most Americans to understand the notion that blacks are insidiously discriminated today in American society.

The Supreme Court has said, in so many words and in many different ways, that our laws have done everything possible to eradicate discrimination against blacks and there is nothing else that can, or should be, done. To continue affirmative action programs (except in professional programs, such as law schools, for example) would be to violate the 14th Amendment as reverse-discrimination.  All that being said, I deplore racism in any form, whether it is outright in its action or application or whether it results by disparate application of law or policy. There is something wrong with a person who thinks that just because a person has a different skin color, there is something fundamentally different about what’s underneath – in his or her heart or mind. There isn’t…..  Unless, of course, it is the skin color that compels people to act differently, in a bad way – in a way that harms society. We are all different, on so many levels, but to think that skin color, a feature that a person is born with and has no ability to change (unless he or she is Michael Jackson) somehow makes that person inherently superior or inferior is the very definition of racist.

We can hold our own opinions regarding culture, cultural values, cultural conduct, and cultural priorities, and that is, in fact, where we are today. And that is our right as individuals who are allowed to think freely. It is our right of conscience and are right of association. But what we should never do is think that any one group of persons, simply based on skin color, is inherently inferior or superior. And we should never impute a bad quality to a group of persons simply because of skin color. Yet we see that all too often, from both sides.

And that’s why I hate racists; I hate what they have done to our society and what they continue to do. I hate race baiters and race mongers. I hate that they constantly force people to look at the characteristics that we can’t change, like skin color, rather than the characteristics that we have control over, such as character, personality, intelligence, talent, kindness, goodness, the ability to promote harmony, and the ability to make others smile. I hate racists from both sides. But to be honest, aside from neo-Nazi groups and strict white supremacists, the real racists are the ones on the left, and yes, from the black community like the NC NAACP, the Democratic Party, Reverend Al Sharpton’s black activist group, Black Lives Matter, the liberal mainstream media, and more. No one takes the neo-Nazis or the white supremacist groups seriously; they are lunatic fringe hate groups. Sadly, they have First Amendment rights. But luckily, they are small, powerless groups who don’t organize huge protests or cause any real violence or damage (as a group).  Dylann Roof, the young man who killed 9 when he shot up a black church in Charleston, identified as a white supremacist and even wrote a manifesto following the Travon Martin shooting.

But the more insidious racism comes from the left. President Obama accused every white person of being a racist (“whether they know it or not”), of being incapable of subconsciously thinking that black people are inferior. Hillary Clinton said the exact same thing. Michelle Obama spent almost her entire life seeing the world, and especially academia, in terms of black and white. She accused Princeton of being a racist institution yet protested the school demanding that black students be allowed to have their own dormitory (blacks, she said, have their own issues and shared interests that warrant getting their own living arrangements). As soon as Barack Obama took office, he rushed to judgement, publicly, when a Harvard professor, Henry Gates, a black man, was apprehended by a police officer when he was caught breaking into his own home (he lost his key).  Obama characterized the incident as an all-too-commonplace incident when a white officer racial profiles a black man. The truth of the matter is that Gates was observed by a neighbor who only saw his back, concluded it was an attempted home break-in, and notified the police. She never once said the man was black. When police arrived at the scene, Gates became overly hostile and accused the police of harassing him only because he was black and refused to answer the policeman’s questions. It was Gates who was the racist; it was he who created a racist incident where it didn’t deserve to be. The Black Lives Matter movement encourages blacks to kill white members of law enforcement for no other reason than they are white. Al Sharpton led a march in New York City in protest of supposed police brutality against blacks in which the marchers chanted “What Do We Want?  Dead Cops!  When Do We Want Them?  NOW!”)  The mainstream media perpetuated an incorrect narrative regarding the Travon Martin shooting, reporting that Community Watch leader George Zimmerman stalked and shot Travon because he was black and didn’t belong in the neighborhood. The truth is (I studied the tox reports, the autopsy findings, the court filings, and the case itself) that yes, while Zimmerman was keeping an eye on Travon (in his car), it was Travon who ultimately stalked him, attacked him, and beat him almost to the point of death, prompting Zimmerman to shoot his gun. Travon was high on drugs, had a history of aggressive behavior (was expelled from high school on account of it), had likely became paranoid because he saw Zimmerman keeping an eye on him (a side-effect of the drugs), and became aggressive, jumping Zimmerman, and while on top of him, punching him and beating him so hard that his nose was broken and blood was flowing down his throat and into his lungs. Zimmerman thought he was going to die and felt himself beginning to lose consciousness, which finally prompted him to shoot Travon. We all remember Obama condemning Zimmerman and saying “Travon could be my son.”  The dishonest media, throughout the ordeal, continued to show Travon as a sweet-faced young kid rather than the angry, thug-faced teen he had grown into, all in an effort to push the narrative that the shoot was racially-motivated. And how many times have we heard the testimonies of pro athletes who talk about their lives in the inner city and how they were raised to hate and mistrust whites. Even college-age liberals seem to be indoctrinated with the notion that all whites share a history of discriminating and mistreating blacks and that all whites are inherently given preferential treatment in society, in schools, in employment, in business, etc even when they don’t deserve it (“white privilege”). That term alone tells us that racism is becoming more entrenched in our society.

The truth is that more than ever, we find ourselves faced with gentle societal pressure to view people in terms of skin color and race, even when we don’t want to… even when every instinct and every moral, religious, and practical impulse tells us it is wrong. But Rev. Spearman is wrong to suggest, and to dare perpetuate, the message that the racism of the pre-Civil Rights era is the same racism poisoning our society and guiding our legislature here in North Carolina.

I.  HISTORY OF NC VOTER ID —

In all its prior elections, North Carolina voters were not obligated to show any form of identification at all when they showed up to vote, which seems impossible given the many instances of voter irregularity, the numbers that don’t make sense, the highly questionable votes that continue to roll in even after the election, the persistent appearance of impropriety in several of the counties in NC, the many instances of reported voter fraud by poll workers and other eyewitnesses, the instances of actual verified voter fraud uncovered by the NC Voter Integrity Project, the refusal of the state Board of Elections to prosecute the instances of fraud, and the inconsistencies (pointing to a scheme of voter fraud) unearthed by Major Dave Goetze when he analyzed all the numbers of voters versus recorded votes.

The adoption of a photo ID requirement to vote finally brings North Carolina into alignment with the great majority of other states who have voter identification requirements. Thirty-four states already require some sort of identification for voting in person. Of those, 17 states require a photo ID.

A voter ID must be viewed as a common sense requirement because many Western democracies, in fact, require voter ID in some form.

North Carolina recognized the need for a photo ID to vote, to address the claims and the opportunity for voter fraud and to address the general lack of trust and confidence in the integrity of its elections, and had already passed a valid Voter ID law back in 2013 (HB 589, which was the initial bill that originated in the NC House; it was amended in the Senate and then enacted as SL 2013-381). It was actually an omnibus bill which essentially means that it includes many changes, or packages many smaller bills into one larger single bill that could be passed with only one vote in each house. SL2013-381, in fact, including many changes to North Carolina’s voting laws in addition to adding a photo ID requirement. It was to take effect in 2016, in time for the presidential election. But African-American activist groups, like the NC chapter of the NAACP, protested strongly against it and challenged it in court, alleging the law to be a “blatant attempt to disenfranchise voters of color.” The Federal District Court for the Middle District of NC found no discriminatory intent, but on appeal to the 4th Circuit Court of Appeals, the 3-judge panel agreed with the petitioners (challengers) and on July 29, 2016, it struct down NC’s Voter ID law as being an intentional attempt to target black voters in its changes to the states’ voter laws. In other words, the 4th Circuit struck the Voter ID law down as being intentionally discriminatory. The opinion of the 4th Circuit will be addressed later, in a little more detail. [The opinion can be accessed at: http://www.ca4.uscourts.gov/Opinions/Published/161468.P.pdf ]

The NC state legislature appealed to the US Supreme Court the following May, but the high court refused to grant review. It denied review, not on the merits, and not on the valid issue at hand, but based on a procedural inconsistency. Pat McCrory filed the petition for review but lost his Governor’s seat in 2016 to Roy Cooper, thus making the challenge by the legislature invalid. In the Court’s response to the NC legislature, Chief Justice John Roberts wrote: “Given the blizzard of filings over who is and who is not authorized to seek review in this Court under North Carolina law, it is important to recall our frequent admonition that ‘the denial of a writ of certiorari imports no expression of opinion upon the merits of the case.’” Again, in denying to hear the case, the Supreme Court was not ruling on whether the 4th U.S. Circuit Court of Appeals’ three-judge panel was correct or not in its assessment of the North Carolina law.

After the crushing blow by the activist 4th Circuit, the NC legislature was left to figure out another way to deliver to the NC citizens a Photo ID voter law, a law which was top on their list of demands in sending a Republican majority to Raleigh. A constitutional amendment was the solution. It was not a legislature-driven initiative but rather one voted upon by the people themselves. And the people voted to adopt it. It was their will; it was their voice.

The NC NAACP can’t accuse 55% of the voters of North Carolina of being racist, of being motivated by a desire to disenfranchise blacks.

The more likely motivation was that they were concerned over too many irregularities in North Carolina elections (the election returns in Durham county, for example, back in 2016 ) and over too many stories (many true) of illegals voting and people voting by misappropriating the names of dead persons and those who have moved away. A photo ID requirement which proves to the poll official that the person who is voting is who he or she says he/she is is a simple way to address such opportunities to defraud the voting process (“One Citizen, One Vote”). Voter fraud and election fraud were also the reasons the NC General Assembly pursued a Voter ID law back in 2013, pursuant to a clear mandate pressured by the voters in the 2010 election. People were sick of the shenanigans being pulled at the ballot box. Despite what the mainstream media says about voter fraud, which in regard to this issue is absolutely fake news, the people know the truth. In 2010, Republicans finally secured the majority in both houses of the NC General Assembly (giving them the power to draw legislative districts, a critical move which helped them achieve GOP supermajorities in both the House and Senate). The opportunity finally arrived to address the lack of faith in NC elections and to address actual voter fraud and potential opportunities to commit it.

The voters of North Carolina put pressure on their state legislature for a Voter ID bill through the ballot box in 2010 (Republicans ran on a Voter ID bill) and then again on November 6 when they adopted a constitutional amendment requiring North Carolinians to present a photo ID to vote.

The language of the  Photo ID amendment, per House Bill 1092 (H.B. 1092), states: “Every person offering to vote in person shall present photo identification before voting in the manner prescribed by law.”

On November 21, Republican leaders in the NC General Assembly drafted a bill that describes what forms of photo ID would be allowed. It is considered a strict form of a photo ID bill; that is, it is restrictive in terms of what forms of ID would be allowed. That initial bill (v. 09) would have required persons to show one of the following forms of photo identification when they show up to vote: A North Carolina driver’s license, a U.S. passport, a military ID and veteran ID, tribal IDs, other forms of photo ID issued by the North Carolina Department of Transportation, a student ID (but only one issued by any of the 17 universities belonging to the UNC university system), and a voter ID card issued by each county’s board of elections office. This week, on Tuesday (Nov. 27), the General Assembly convened for a special two-week lame duck session in order to continue work on the new Voter ID law, as well as to address the other constitutional amendments adopted by voters on election day. Almost immediately, though, a revised draft of the Photo-Voter ID bill was submitted (Senate Bill 824; or S.824 – See below for its content) and as expected, Democrats played their games in an attempt to water-down the bill. From what I am told, the General Assembly will tackle in earnest the legislation to address photo ID next week.

And that is where the amendment stands right now.

The intent of the amendment would suggest that voters want a strict photo ID voter law. Why do I say this?  Considering the intense fight by Democrats and groups representing blacks to oppose and challenge a common-sense Voter ID law (it wasn’t even a strict one) and the intense media opposition campaign by the liberal-controlled media and by the Democrats (with George Soros providing much of the funding) to the Voter ID amendment, it seems obvious that the reason they were (and have been) so intently opposed to any type of voter ID is because they don’t want honest elections. Only a strict photo ID requirement can effectively thwart any of their plans to engage in voter manipulation or fraud.

NC Representatives Michele Presnell (R-Yancey) and John Sauls (R-Lee), both primary sponsors of H.B. 1092, believed the amendment was vital to block election fraud. As Rep. Presnell explained: “Citizens are increasingly concerned about attempts to subvert our elections process and it is incumbent upon government officials to safeguard public perception of our democracy as well as the actual ballots cast.” And Rep. Sauls added: “Confidence in the American democracy is essential to its longevity. Our state must not tolerate anyone’s vote being threatened because lawmakers failed to prevent fraud.”

Which brings us to the special lame-duck session which convened this week. Republicans want a strict form of a Photo ID law and but they face a potential hurdle if they don’t act quickly – Governor Roy Cooper, a Democrat and a strong opponent of voter ID laws. In fact, his entire history as Attorney General and we see a little of it also as Governor is that he has little respect for laws that are duly enacted and supported by the majority of the people of the state. He refused to support the Marriage Amendment that was adopted in the state by a ballot initiative (refused to defend it when it was challenged, even though it was his job) and he refused to allow the Supreme Court to review the 4th Circuit’s opinion on the 2013 Voter ID law. If Republicans have any chance of passing a strict Photo ID law, it needs to do so while it still enjoys a supermajority on both houses (that is, it needs to pass it before the new General Assembly is sworn in and the 2019-2020 session begins, which will be in January).

Interested persons should review the recent draft (S.824 – see below) and if they have questions or concerns, they should contact their legislators as quickly as possible.

II.  THE RELEVANT LAW

Let’s go back to the accusations made by race-mongers, Rev. Anthony Spearman and Rev. William Barber, and his racist organization, the NC NAACP.  I call them “race mongers” because they and their organization feed off racial stress and racial division. The organization exists only to perpetuate it and in fact, should racial harmony exist, the organization would die. It would become irrelevant; Rev. Spearman would become irrelevant. Rev. William Barber would be irrelevant. These men and this organization (like many similar ones) offer nothing brand new, nothing good, no solutions, but rather, just emphasize and re-emphasize the dispute between the races and the sins of the past.

Let’s look at their accusations that any form of Voter ID law is an absolute “abridgement” of the voting rights guarantee in the 15th Amendment to black people, that all attempts to enact a Voter ID law in North Carolina amounts to an intentional scheme to disenfranchise blacks of their right to vote, and that white legislators, in general, meet in their caucuses for the precise purpose to scheme against blacks and to seek legislation to discriminate against them and to disenfranchise them of rights and privileges and opportunities.

The first step, of course, is to take note of the relevant law, which I’ve summarized below:

A.  The 15th Amendment:

Section 1:  The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

Section 2:  The Congress shall have power to enforce this article by appropriate legislation.

B.  The 14th Amendment:

Section 1:  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.

C.  Voting Rights Act of 1965 (relevant sections)

Section 4: (a) To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under subsection (b) or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia in an action for a declaratory judgment brought by such State or subdivision against the United States has determined that no such test or device has been used during the five years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color: Provided, That no such declaratory judgment shall issue with respect to any plaintiff for a period of five years after the entry of a final judgment of any court of the United States, other than the denial of a declaratory judgment under this section, whether entered prior to or after the enactment of this Act, determining that denials or abridgments of the right to vote on account of race or color through the use of such tests or devices have occurred anywhere in the territory of such plaintiff. An action pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court. The court shall retain jurisdiction of any action pursuant to this subsection for five years after judgment and shall reopen the action upon motion of the Attorney General alleging that a test or device has been used for the purpose or with the effect of denying or abridging the right to vote on account of race or color.

If the Attorney General determines that he has no reason to believe that any such test or device has been used during the five years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color, he shall consent to the entry of such judgment

(b) The provisions of subsection (a) shall apply in any State or in any political subdivision of a state which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 percentum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 percentum of such persons voted in the presidential election of November 1964.

A determination or certification of the Attorney General or of the Director of the Census under this section or under section 6 or section 13 shall not be reviewable in any court and shall be effective upon publication in the Federal Register.

(c) The phrase “test or device” shall mean any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.

(d) For purposes of this section no State or political subdivision shall be determined to have engaged in the use of tests or devices for the purpose or with the effect of denying or abridging the right to vote on account of race or color if (1) incidents of such use have been few in number and have been promptly and effectively corrected by State or local action, (2) the continuing effect of such incidents has been eliminated, and (3) there is no reasonable probability of their recurrence in the future.

Section 5:  Whenever a State or political subdivision with respect to which the prohibitions set forth in section 4(a) are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General’s failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court.

Source:  https://www.ourdocuments.gov/doc.php?flash=false&doc=100&page=transcript

The Voting Rights Act of 1965 has no bearing on NC Voter ID laws since June 2013, when, in the case of Shelby County v. Holder, the Supreme Court struck down the operative section that used to require the federal government to review changes to any state’s voting laws, provided that state had a history of discrimination against African-Americans.

Section 5 is known as the Pre-Clearance Section, which provides that any state or political subdivision thereof meeting the criteria set forth in Sections 4(a)-(b), must have any changes to its voting laws reviewed by a federal court to make sure that such changes do not discriminate outright on account of race or have the effect of doing so. Section 5 was not invalidated, but Section 4 was. Section 4 is the section which establishes the “Pre-Clearance Formula” to determine which state or subdivision thereof comes under the jurisdiction of Section 5. In other words, Section 4 contained the legislative formula to determine which jurisdictions must get “preclearance” from the federal government to change their voting laws—a procedure mandated by Section 5 of the Act. Without Section 4, Section 5 has no effect, since no states or jurisdictions are subject to the preclearance mandate. (The formula hadn’t been updated by Congress since 1975 and so a majority of the Court struck down Section 4 because the formula was far too outdated to pass constitutional muster.)

Note, however, that the Court in Shelby decided to exempt Section 5 from scrutiny, thereby leaving an opening for Congress to enact a new formula that “identifies those jurisdictions to be singled out on a basis that makes sense in light of the current conditions.”

I should go into the Shelby decision a little further since the 2016 4th Circuit opinion striking down the 2013 NC Voter ID law touches on it and also because Rev. Spearman is under the impression that the 15th Amendment and Voting Rights Act go hand-in-hand as perpetual law. He believes that the constraints imposed by the Voting Rights Act extend, and should rightly so, into perpetuity. He is under the impression that there is a continual struggle between whites and blacks and that whites will always find ways to disenfranchise blacks to minimize their standing in society. But that just isn’t so.

The following is taken right from the Opinion:  (https://www.law.cornell.edu/supremecourt/text/12-96 )

FACTS & HISTORY:  The Voting Rights Act of 1965 was enacted to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach (1966).  Section 2 of the Act, which bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color,” 42 U. S. C. §1973(a), applies nationwide, is permanent, and is not at issue in this case. Other sections apply only to some parts of the country. Section 4 of the Act provides the “coverage formula,” defining the “covered jurisdictions” as States or political subdivisions that maintained tests or devices as prerequisites to voting, and had low voter registration or turnout, in the 1960s and early 1970s. §1973b(b). In those covered jurisdictions, §5 of the Act provides that no change in voting procedures can take effect until approved by specified federal authorities in Washington, D. C. §1973c(a). Such approval is known as “preclearance.”

The coverage formula and preclearance requirement were initially set to expire after five years, but the Act has been reauthorized several times. In 2006, the Act was reauthorized for an additional 25 years, but the coverage formula was not changed. Coverage still turned on whether a jurisdiction had a voting test in the 1960s or 1970s, and had low voter registration or turnout at that time. Shortly after the 2006 reauthorization, a Texas utility district sought to bail out from the Act’s coverage and, in the alternative, challenged the Act’s constitutionality. This Court resolved the challenge on statutory grounds, but expressed serious doubts about the Act’s continued constitutionality. See Northwest Austin Municipal Util. Dist. No. One v. Holder (2009).

Petitioner Shelby County, in the covered jurisdiction of Alabama, sued the Attorney General in Federal District Court in Washington, D. C., seeking a declaratory judgment that sections 4(b) and 5 are facially unconstitutional, as well as a permanent injunction against their enforcement. The District Court upheld the Act, finding that the evidence before Congress in 2006 was sufficient to justify reauthorizing §5 and continuing §4(b)’s coverage formula. The D. C. Circuit affirmed. After surveying the evidence in the record, that court accepted Congress’s conclusion that §2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, that §5 was therefore still necessary, and that the coverage formula continued to pass constitutional muster.

OPINION & REASONING:  The majority opinion was delivered by Chief Justice John Roberts joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito.  The Court held that Section 4(b) of the Voting Rights Act is unconstitutional, that its formula can no longer be used as a basis for subjecting states and political subdivisions to preclearance. The majority concluded that Section 4(b) exceeded Congress’s power to enforce the 14th and 15th Amendments, reasoning that the coverage formula conflicts with the constitutional principles of federalism and “equal sovereignty of the states” because the disparate treatment of the states is “based on 40 year-old facts having no logical relationship to the present day” and thus is not responsive to current needs. The Court expressed that Congress cannot subject a state to preclearance based simply on past discrimination. The opinion reads:

In Northwest Austin, this Court noted that the Voting Rights Act “imposes current burdens and must be justified by current needs” and concluded that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” It is this basic principle of sovereignty and also this principle of “burden v. necessity” that guide the Court in addressing the issue presented – in reviewing the constitutionality of Sections 4 and 5 of the Voting Rights Act.

(1)  State legislation may not contravene federal law. States retain broad autonomy, however, in structuring their governments and pursuing legislative objectives. Indeed, the Tenth Amendment reserves to the States all powers not specifically granted to the Federal Government, including “the power to regulate elections.” Gregory v. Ashcroft (1991). There is also a “fundamental principle of equal sovereignty” among the States, which is highly pertinent in assessing disparate treatment of States. See Northwest Austin. The Voting Rights Act sharply departs from these basic principles. It requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own. And despite the tradition of equal sovereignty, the Act applies to only nine States (and additional counties). That is why, in 1966 (in Katzenbach), this Court described the Act as “stringent” and “potent.” The Court nonetheless upheld the Act, concluding that such an “uncommon exercise of congressional power” could be justified by “exceptional conditions.”

(2)  In 1966, these departures were justified by the “blight of racial discrimination in voting” that had “infected the electoral process in parts of our country for nearly a century” [Katzenbach]. At the time, the coverage formula – the means of linking the exercise of the unprecedented authority with the problem that warranted it – made sense. The Act was limited to areas where Congress found “evidence of actual voting discrimination,” and the covered jurisdictions shared two characteristics: “the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average.” The Court explained that “tests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” [Ibid]  The Court therefore concluded that “the coverage formula was rational in both practice and theory.” [Ibid]

(3)  Nearly 50 years later, things have changed dramatically. While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions. Largely because of the Voting Rights Act, “voter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”  See Northwest Austin. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased §5’s restrictions or narrowed the scope of §4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger. Because §5 applies only to those jurisdictions singled out by §4, the Court turns to consider that provision.

Later in the opinion, Chief Justice Roberts wrote:

A statute’s “current burdens” must be justified by “current needs,” and any “disparate geographic coverage” must be “sufficiently related to the problem that it targets.” The coverage formula met that test in 1965, but no longer does so.

Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity…..  The nation is no longer divided along racial lines, yet the Voting Rights Act continues to treat it as if it were.

…..  the Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future.

In light of the outdated formula, in light of the fact that at one time (1966), the formula was “rational in both practice and theory” (preclearance was a “tailored remedy” under the circumstances) but that times have dramatically changed, and in light of the undue burden it placed on certain states in violation of the Tenth Amendment, the Supreme Court concluded that Section 4’s formula is unconstitutional in light of current conditions.

Taking to heart the opinion’s explanation that times have “changed dramatically,” ask yourself a question: Referring to the black women I wrote about much earlier, who had attempted to vote at least three times on a single day in North Carolina, with the poll officials purposely not saying anything about it or turning her in – Does anyone think that such a thing could have ever happened in pre-Civil Rights era America? Does anyone even think such a thing could have happened in 1965?  Absolutely not. That instance shows just how much times have changed and how far behind us we’ve put racial discrimination at the ballot box.

Again, note that Justice Roberts opted to strike down only the formula in Section 4 that determined which jurisdictions would be subject to the preclearance requirements. The Court declined to address the constitutionality of Section 5 (invoking the doctrine of “constitutional avoidance,” which says that a federal court should refuse to rule on a constitutional issue if the case can be resolved on a non-constitutional basis), although it also was challenged by Shelby County, Alabama, thus leaving it in place for Congress, should it ever wish to enact an updated “formula.”  (Giving Congress the chance to address or update Section 5 was the “chance to resolve the issue on a non-constitutional basis”).

As Justice Antonin Scalia said during oral arguments: “Congress reauthorized Section 5 (in 2006) not because the legislation was necessary, but because it constituted a ‘racial entitlement’ that Congress was unlikely to end.”

The important thing to know is that as it stands now, Section 5 has been rendered useless by the decision in Shelby because the provision that gives it force (Section 4) has been struck down as unconstitutional. And because Section 5 is rendered useless, the Voting Rights Act no longer demands and requires federal court review and approval of any changes to North Carolina’s voting laws. (Same for any other southern state previously identified by the law’s “preclearance” provision)

D.  Latest Draft of a NC Photo-Voter ID bill (S.824):

PART I:  IMPLEMENTATION OF THE CONSTITUTIONAL REQUIREMENT REQUIRING PHOTOGRAPHIC IDENTIFICATION TO VOTE

SECTION 1.1(a)  Article 17 of Chapter 163A of the General Statutes is amended by adding a new section to read:

“§ 163A-869.1.  Voter Photo Identification Cards.

(a) The county board of elections shall, in accordance with this section, issue without charge voter photo identification cards upon request to registered voters. The voter photo identification cards shall contain a photograph of the voter and the registration number for that voter. The voter photo identification card shall be used for voting purposes only, and shall expire ten years from the date of issuance.

(b) The State Board shall make available to county board of elections the equipment necessary to print voter photo identification cards. The county board of elections shall operate and maintain the equipment necessary to print voter photo identification cards.

(c)  County boards of elections shall maintain a secure database containing the photographs of registered voters taken for the purpose of issuing voter photo identification cards.

(d)  The State Board shall adopt rules to ensure at a minimum, but not limited to, the following:

(1) A registered voter seeking to obtain a voter photo identification card shall provide the voter’s date of birth and the last four digits of the voter’s social security number.

(2) Voter photo identification cards shall be issued at any time, except during the time period between the end of the voter registration deadline for a primary or election as provided in G.S. 163A-865 and election day for each primary and election.

(3) If the registered voter loses or defaces the voter’s photo identification card, the voter may obtain a duplicate card without charge from his or her county board of registration upon request in person, or by telephone, or mail.

(e) Ninety days prior to expiration, the county board of elections shall notify any voter issued a voter photographic identification card under this section of the impending expiration of the voter photographic identification card.”

SECTION 1.2(a)  Article 20 of Chapter 163A of the General Statutes is amended by adding a new section to read:

“§ 163A-1145.1.  Requirement for Photo Identification to Vote in Person.

(a).  Photo Identification Required to Vote. – When a voter presents to vote in person, the voter shall produce any of the following forms of identification that contain a photograph of the voter:

(1)  Any of the following that is valid and unexpired, or has been expired for one year or less::

  1. A North Carolina drivers license.
  2. A special identification card for nonoperators issued under G.S. 20-37.7 or other form of non-temporary identification issued by the Division of Motor Vehicles of the Department of Transportation.
  3. A United States passport.
  4. A North Carolina voter photo identification card of the voter issued pursuant to G.S. 163A-869.1.
  5. A valid and current tribal enrollment card issued by a federally recognized tribe.
  6. A valid and current tribal enrollment card issued by a tribe recognized by this State under Chapter 71A of the General Statutes, provided that card meets all of the following criteria:

(i). Is issued in accordance with a process approved by the State Board that requires an application and proof of identity equivalent to the requirements for issuance of a special identification card by the Division of Motor Vehicles of the Department of Transportation.

(ii). Is signed by an elected official of the tribe.

  1. A student identification card issued by a constituent institution of the University of North Carolina, a community college, as defined in G.S. 115D-2(2), or eligible private postsecondary institution as defined in G.S. 116-280(3), provided that card is issued in accordance with G.S. 163A-1145.2.
  2. An employee identification card issued by a state or local government entity, including a charter school, provided that card is issued in accordance with G.S. 163A-1145.3.
  3. A drivers license or special identification card for nonoperators issued by another state, the District of Columbia, or a territory or commonwealth of the United States, but only if the voter’s voter registration was within 90 days of the election.

(2)  Any of the following, regardless of whether the identification contains a printed expiration or issuance date:

  1. A military identification card issued by the United States government.
  2. A Veterans Identification Card issued by the United States Department of Veterans Affairs for use at Veterans Administration medical facilities.

(3)  Any expired form of identification allowed in this subsection presented by a voter having attained the age of 65 years at the time of presentation at the voting place, provided that the identification was unexpired on the voter’s sixty-fifth birthday.

(b). Verification of Photo Identification. – After presentation of the required identification described in subsection (a) of this section, the precinct officials assigned to check registration shall compare the photograph contained on the required identification with the person presenting to vote. The precinct official shall verify that the photograph is that of the person seeking to vote. If the precinct official disputes that the photograph contained on the required identification is the person presenting to vote, a challenge shall be conducted in accordance with the procedures of G.S. 163A-914.

(c)  Provisional Ballot Required Without Photo Identification. – If the registered voter cannot produce the identification as required in subsection (a) of this section, the voter may cast a provisional ballot that is counted only if the voter brings a valid and current photo identification to the county board of elections no later than the end of business on the business day prior to the canvass by the county board of elections as provided in G.S. 163A-1172.

(d)  Exceptions. – The following exceptions are provided for a voter who does not produce a valid and current photograph identification as required above:

(1) Religious Objection. – If a voter does not produce a valid and current photograph identification due to a religious objection to being photographed, the voter may complete an affidavit under penalty of perjury at the voting place and affirm that the voter: (i) is the same individual who personally appears at the voting place; (ii) will cast the provisional ballot while voting in person; and (iii) has a religious objection to being photographed. Upon completion of the affidavit, the voter may cast a provisional ballot.

(2) Reasonable Impediment. – If a voter does not produce a valid and current photograph identification because the voter suffers from a reasonable impediment that prevents the voter from obtaining photograph identification,

the voter may complete an affidavit under the penalty of perjury at the voting place and affirm that the voter: (i) is the same individual who personally appears at the voting place; (ii) will cast the provisional ballot while voting in person; and (iii) suffers from a reasonable impediment that prevents the voter from presenting photograph identification. The voter also shall complete a reasonable impediment declaration form provided in subsection (d1) of this section, unless otherwise prohibited by state or federal law. Upon completion of the affidavit, the voter may cast a provisional ballot.

(3) Natural Disaster. – If a voter does not produce an acceptable form of photograph identification due to being a victim of a natural disaster occurring within 100 days before election day that resulted in a disaster declaration by the President of the United States and the Governor of this State, the voter may complete an affidavit under penalty of perjury at the voting place and affirm that the voter: (i) is the same individual who personally appears at the voting place; (ii) will cast the provisional ballot while voting in person; and (iii) was a victim of a natural disaster occurring within 100 days before election day that resulted in a disaster declaration by the President of the United States and the Governor of this State. Upon completion of the affidavit, the voter may cast a provisional ballot.

(d1) Reasonable Impediment Declaration Form. – The State Board shall adopt a Reasonable Impediment Declaration form that, at a minimum, includes the following as separate boxes that a voter may check to identify the voter’s reasonable impediment:

(1)  Inability to obtain photo identification due to:

  1. Lack of transportation.
  2. Disability or illness.
  3. Lack of birth certificate or other underlying documents required.
  4. Work schedule.
  5. Family responsibilities.

(2)  Lost or stolen photo identification

(3)  Photo identification applied for but not yet received by the voter voting in person.

(4)  Other reasonable impediment. If the voter checks the “other reasonable impediment” box, a further brief written identification of the reasonable impediment shall be required, including the option to indicate that State or federal law prohibits listing the impediment.

(e)  County Board Review of Exceptions. – If the county board of elections determines that the voter voted a provisional ballot only due to the inability to provide proof of identification and the required affidavit required in subsection (d) of this section is submitted, the county board of elections shall find that the provisional ballot is valid unless the county board has grounds to believe the affidavit is false.

(f)  Purpose. The purpose of the identification required is to confirm the person presenting to vote is the voter on the voter registration records. Any address listed on the identification is not determinative of a voter’s residence for the purpose of voting. A voter’s residence for the purpose of voting is determined pursuant to G.S. 163A-842.

SECTION 1.2(b)  Article 20 of Chapter 163A of the General Statutes is amended by adding a new section to read:

“§ 163A-1145.2.  Approval of Student Identification Cards for Voting Identification.

(a) The State Board shall approve the use of student identification cards issued by a constituent institution of The University of North Carolina, a community college, as defined in G.S. 115D-2(2), or eligible private postsecondary institution as defined in G.S. 116-280(3) for voting identification under G.S. 163A-1145.1 if the following criteria are met:

(1) The chancellor, president, or registrar of the university or college submits a signed letter to the Executive Director of the State Board under penalty of perjury that the following are true:

  1. The identification cards that are issued by the university or college contain photographs of students taken by the university or college or its agents or contractors.
  2. The identification cards are issued after an enrollment process that includes methods of confirming the identity of the student that include, but are not limited to, the social security number, citizenship status, and birthdate of the student.
  3. The equipment for producing the identification cards is kept in a secure location.
  4. Misuse of the equipment for producing the identification cards would be grounds for student discipline or termination of an employee.
  5. University or college officials would report any misuse of student identification card equipment to law enforcement if G.S. 163A-1389(19) was potentially violated.
  6. The cards issued by the university or college contain a date of expiration, effective January 1, 2021.
  7. The university or college provides copies of standard identification cards to the State Board to assist with training purposes.

(2) The university or college complies with any other reasonable security measures determined by the State Board to be necessary for the protection and security of the student identification process.

(b) The State Board shall approve the use of student identification cards issued by a constituent institution of The University of North Carolina, a community college, as defined in G.S. 115D-2(2), or eligible private postsecondary institution as defined in G.S. 116-280(3) every four years.

(c) The State Board shall produce a list of participating universities and colleges every four years. The list shall be published on the State Board’s Web site and distributed to every county board of elections.”

SECTION 1.2(c)  Article 20 of Chapter 163A of the General Statutes is amended by adding a new section to read:

“§ 163A-1145.3.  Approval of Employee Identification Cards for Voting Identification.

(a) The State Board shall approve the use of employee identification card issued by a state or local government entity, including a charter school, for voting identification under G.S. 163A-1145.1 if the following criteria are met:

(1) The head elected official or lead human resources employee of the state or local government entity or charter school submits a signed letter to the Executive Director of the State Board under penalty of perjury that the following are true:

  1. The identification cards that are issued by the state or local government entity contain photographs of the employees taken by the employing entity or its agents or contractors.
  2. The identification cards are issued after an employment application process that includes methods of confirming the identity of the employee that include, but are not limited to, the social security number, citizenship status, and birthdate of the employee.
  3. The equipment for producing the identification cards is kept in a secure location.
  4. Misuse of the equipment for producing the identification cards would be grounds for termination of an employee.
  5. State or local officials would report any misuse of identification card equipment to law enforcement if G.S. 163A-1389(19) was potentially violated.
  6. The cards issued by the state or local government entity contain a date of expiration, effective January 1, 2021.
  7. The state or local government entity provides copies of standard identification cards to the State Board to assist with training purposes.

(2) The state or local government entity complies with any other reasonable security measures determined by the State Board to be necessary for the protection and security of the employee identification process.

(b) The State Board shall approve the use of employee identification cards issued by a state or local government entity, including a charter school, every four years.

(c) The State Board shall produce a list of participating employing entities every four years. The list shall be published on the State Board’s Web site and distributed to every county board of elections.

SECTION 1.2(d)  Notwithstanding G.S. 163A-1145.1, 163A-1145.2, and 163A-1145.3, the State Board shall approve (i) tribal enrollment cards issued by a tribe recognized by this State under Chapter 71A of the General Statutes; (ii) student identification cards issued by a constituent institution of The University of North Carolina, a community college, as defined in G.S. 115D-2(2), or eligible private postsecondary institution as defined in G.S. 116-280(3); and (iii) employee identification cards issued by a state or local government entity, including a charter school, for use as voting identification under G.S. 163A-1145.1 no later than March 15, 2019, for use in primaries and elections held in 2019 and 2020, and again no later than May 15, 2021, for elections held on or after that date. The State Board shall adopt temporary rules on reasonable security measures for use of student or employee identification cards for voting identification in G.S. 163A-1145.2 and G.S. 163A-1145.3 no later than February 1, 2019. The State Board shall adopt permanent rules on reasonable security measures for use of student or employee identification cards for voting identification in G.S. 163A-1145.2 and G.S. 163A-1145.3 no later than May 15, 2021. The State Board shall produce the initial list of participating institutions and employing entities no later than April 1, 2019.

SECTION 1.2(e)  Notwithstanding G.S. 163A-1145.1, 163A-1145.2, and 163A-1145.3, a student identification card issued by a constituent institution of The University of North Carolina, a community college, as defined in G.S. 115D-2(2), or eligible private postsecondary institution as defined in G.S. 116-280(3) or an employee identification card issued by state or local government entity that does not contain an expiration date shall be eligible for use in any election held before January 1, 2021. 9

SECTION 1.2(f)  Notwithstanding G.S. 163A-1145.1(d)(2), for elections held in 2019, any voter who does not present a photograph identification listed as acceptable in G.S. 163A-1145.1(a) when presenting to vote in person shall be allowed to complete a reasonable impediment affidavit and cast a provisional ballot, listing as the impediment not being aware of the requirement to present photograph identification when voting in person or failing to bring photograph identification to the voting place.

***  Language and sections highlighted in bold are the revisions to the original draft proposed by lawmakers just prior to the start of the special lame-duck session of the NC General Assembly.

[Source:  The draft bill (S.824) –  https://www.ncleg.net/Sessions/2017/Bills/Senate/PDF/S824v2.pdf

The changes made to the original draft Voter ID bill (v. 09) which gave rise to S.824 are listed in more plain terms below:

(a) SECTION 1.1(a) adds a new section to § 163A-869: Voter Photo Identification Cards – requiring county boards of election to maintain a secure database containing the photographs of registered voters taken for the purpose of issuing voter photo identification cards.

(b) SECTION 1.2(a) broadens the section in § 163A-1145.1: Requirement for Photo Identification to Vote in Person which lists Student ID cards as an acceptable form of photo identification. In the prior version of the bill, the only acceptable student ID cards were those issued by any of the 17 schools belonging to the UNC University system.

(c) SECTION 1.1(b) adds a new section to § 163A-869: Voter Photo Identification Cards – adding Employment Identification cards as an acceptable form of photo identification.

(d) SECTION 1.1(b) adds additional language to the section (“Exceptions – Reasonable Impediment”) in § 163A-869: Voter Photo Identification Cards. It further includes Section (dl) which requires that a voter claiming a Reasonable Impediment to fill out a Reasonable Impediment Declaration Form.

(e) SECTION 1.1(b) adds a new subsection to § 163A-869: Voter Photo Identification Cards – to section “Exceptions.” The new exception is “Natural Disaster.”

(f) All the sections after that – Sections 1.2 (c) – 1.2 (f) – are newly-added; that is, they are new to S.824.

E.  The Opinion of the Supreme Court, Crawford v. Marion County Board of Elections (2008) – upholding the constitutionality of a strict photo ID type voter ID law

In 2005, Indiana passed a strict Voter ID law.  It was the most restrictive voter law at the time. The Indiana statute required citizens voting in person on election day, or casting a ballot in person at the office of the circuit court clerk prior to election day, to present photo identification issued by the government.

Under the law, voters MUST have a specific form of ID in order to vote. The ID must be issued by the state of Indiana or the U.S. government and must show the following:

  • Name of individual to whom it was issued, which must conform to the individual’s registration record
  • Photo of the person to whom it was issued
  • Expiration date (if it is expired, it must have an expiration date after the most recent general election; military IDs are exempted from the requirement that ID bear an expiration date)

Voters in Indiana who are unable to or decline to produce such an identification may vote a provisional ballot. The ballot is counted only if: (1) the voter returns to the election board by noon on the Monday after the election and: (A) produces proof of identification; or (B) executes an affidavit stating that the voter cannot obtain proof of identification, because the voter: (i) is indigent; or (ii) has a religious objection to being photographed; and (2) the voter has not been challenged or required to vote a provisional ballot for any other reason.  [Indiana statute §3-5-2-40.5, 3-10-1-7.2 and 3-11-8-25.1]

The strict photo identification requirement was challenged as being an unreasonable burden on the right to vote and that challenge made its way to the Supreme Court in 2008.  [Crawford v. Marion County Election Board, (2008)].  Civil rights groups (including ACORN), the Women’s League of Voters, and other groups filed amici briefs challenging the constitutionality of the ID requirement.  After concluding that no voter would conceivably be precluded from voting under the law, the Supreme Court upheld the constitutionality of the photo ID requirement, finding it closely related to Indiana’s legitimate state interest in preventing voter fraud, modernizing elections, and safeguarding voter confidence.

Justice John Paul Stevens, who wrote the majority opinion, stated that the burdens placed on voters are limited to a small percentage of the population and were offset by the state’s interest in reducing fraud. He opined: “Because Indiana’s cards are free, the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph does not qualify as a substantial burden on most voters’ right to vote, or represent a significant increase over the usual burdens of voting. The severity of the somewhat heavier burden that may be placed on a limited number of persons—e.g., elderly persons born out-of-state, who may have difficulty obtaining a birth certificate—is mitigated by the fact that eligible voters without photo identification may cast provisional ballots that will be counted if they execute the required affidavit at the circuit court clerk’s office. Even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners’ right to the relief they seek.”

He concluded:

      “In sum, on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes “excessively burdensome requirements” on any class of voters. A facial challenge must fail where the statute has a ‘plainly legitimate sweep.’ When we consider only the statute’s broad application to all Indiana voters we conclude that it imposes only a limited burden on voters’ rights. The precise interests advanced by the State are therefore sufficient to defeat petitioners’ facial challenge.

      Finally we note that petitioners have not demonstrated that the proper remedy – even assuming an unjustified burden on some voters – would be to invalidate the entire statute. When evaluating a neutral, nondiscriminatory regulation of voting procedure, we must keep in mind that a ruling of unconstitutionality frustrates the intent of the elected representatives of the people.”

Justice Scalia wrote separately in a concurring opinion: “The law should be upheld because the overall burden is minimal and justified.”  He went on to state that the Supreme Court should defer to state and local legislators and that the Supreme Court should not get involved in local election law cases, which would do nothing but encourage more litigation. “It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class,” he wrote.

Finally, he concluded: “The universally applicable requirements of Indiana’s voter-identification law are eminently reasonable. The burden of acquiring, possessing, and showing a free photo identification is simply not severe, because it does not “even represent a significant increase over the usual burdens of voting.”  And the State’s interests are sufficient to sustain that minimal burden. That should end the matter.”

In addition to the challenge that the strict ID requirement was an unreasonable burden on the right to vote, civil rights groups alleged that the requirement benefitted Republicans and harmed Democrats at the ballot box (because Democrats include more poor people and minorities).  Justice Stevens, joined by Justices Scalia and Kennedy, disregarded that argument and wrote: “The justifications for the law should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.”

What exactly does the Indiana Voter ID law require of each voter when he or she shows up to vote?  This is important because according to the Supreme Court, the ID requirement is NOT an unreasonable limitation on the right to vote.  The Supreme Court did not say it was not an unreasonable limitation on the right to vote for a WHITE person.  The Court held that the limitation was not an unreasonable limitation on any person’s right to vote.

F.  The Opinion of the 4th Circuit, North Carolina NAACP v. Pat McCrory (2016) – striking down the 2013 NC Voter ID Law

Reverend Spearman points to the opinion of the leftist 4th Circuit as proof that North Carolina’s 2013 Voter ID law was intentionally racist and racially-motivated, that the NC General Assembly is a racist government body, and that any law enacted in North Carolina to regulate voting (particularly to address potential fraud and integrity concerns) is nothing more than an intentional scheme to continue the historical repression of black votes. He points to the language of the opinion, which just happens to sing his favorite tune. The language also happens to be horribly offensive and I submit, legally dishonest.

But first let’s look at the judicial history:  The day the NC Voter ID law was passed (SL 2013-381).

On August 12, 2013, the NC General Assembly, with the signature of Governor Pat McCrory, enacted the first NC Voter ID law [Carolina Session Law 2013-381, or “SL 2013-381”], which made a number of changes to North Carolina’s voting laws.  All the changes were to take effect immediately except for the voter photo ID requirement, which would not be effective until January 1, 2016.  That same day, the NC NAACP joined several groups in suing to overturn several provisions – provisions they alleged as being racially motivated: the photo-ID requirement, elimination of same-day registration (“SDR”), elimination of the first week of early voting (shortening the total early voting period from seventeen to ten days), elimination of one of the two “souls-to-the-polls” Sunday voting days (which allow churches to provide transportation to voters), prohibition on counting out-of-precinct (“OOP”) provisional ballots, elimination of mandatory pre-registration of sixteen-year-olds (when they attend mandatory high school driver’s education or go to the DMV to obtain a drivers license), and expansion of poll observers and ballot challenges.

Trial was set for July 13, 2015.  On June 18, 2015, the NC General Assembly passed House Bill 836, and on June 22, 2015, the Governor signed it into law as North Carolina Session Law 2015-103 (“SL 2015-103”). The law relaxed the photo-ID requirement created by SL 2013-381 by providing an additional exception that permits individuals to vote without a photo ID so long as they sign a “reasonable impediment” affidavit. Beginning July 13, 2015, the district court held a trial on the merits of all claims except those challenging the merits of the photo-ID provision, but then the NC NAACP and other plaintiffs sought to also ask the court for an injunction preventing the implementation of the “watered-down” photo ID requirement (as amended, or “watered down” by the “reasonable impediment” provision). In all, the NC NAACP sought a preliminary injunction against the challenged changes to existing voting laws and a preliminary injunction only as to the “soft roll-out” of the photo ID requirement.”  The district court denied the injunctions, concluding that the plaintiffs did not make a strong enough showing that they would succeed on the merits of their case. The court held that the NC General Assembly did not act with discriminatory intent in enacting its Voter ID omnibus bill and deferred to its wisdom and intent in drafting and passing the law.

The case was then appealed to the 4th Circuit Court of Appeals, which reversed the opinion of the District Court. The opinion was written by Judge Motz.

The 4th Circuit 3-judge panel noted that all of the voting tools restricted or eliminated by the bill were ones that African-Americans disproportionately used. Furthermore, according to the court, the photo ID requirement imposed a hardship on African-American as they disproportionately lacked them.  [Note again that the legislature had amended the bill, in 2015 (version SL 2013-103) before its trial date to include other forms of identification that African-Americans would likely possess, as well as to include a provision providing that if a person could not produce a photo ID, a one free of charge would be provided by the county, but the 4th Circuit ignored that]. Essentially, the 4th Circuit concluded that the NC state legislature acted with discriminatory intent in enacting the 2013 Voter ID bill because it restricted voting mechanisms and procedures that most heavily affect blacks.

The opinion began:

“During the period in which North Carolina jurisdictions were covered by Section 5 of the Voting Rights Act (preclearance of any voting laws with the US Justice Department), African-American electoral participation dramatically improved.  In particular, between 2000 and 2012, when the law provided for the voting mechanisms at issue here (ie, early voting, Sunday voting, same-day voting, provisional voting) and did not require photo ID, African-American voter registration swelled by 51.1% – as compared to an increase of only 15.8% for white voters.  African-American turnout similarly surged, from 41.9% in 2000 to 71.5% in 2008 and 68.5% in 2012.”

[The 4th Circuit incorrectly credited North Carolina’s very relaxed voting laws with the African-American voter turn-out when the truth is that the turn out was exceptionally high, in relation to white voter turn-out,] because for the first time in our country’s history, an African-American was running for president. The African-American community couldn’t be more energized!]

The opinion continued:

“After years of preclearance and expansion of voting access, by 2013 African-American registration and turnout rates had finally reached near-parity with white registration and turnout rates. African-Americans were poised to act as a major electoral force.”

The judges concluded that the sole purpose of the Voter ID law was to prevent that from happening.

In late June 2013, the Supreme Court issued its opinion in Shelby County v. Holder, a case that held enormous implications for North Carolina.  In it, the Court invalidated Section 4(b) of the Voting Rights Act, which provided the preclearance coverage formula to be used by the federal government when assessing a change to a state voting law under Section 5.  The government reviews changes to state voting laws under the Voting Rights Act one of two ways: either in an administrative review by the Attorney General, or in court, in the US District Court for the District of Columbia. The Supreme Court in Shelby found that Section 4 was unconstitutional as an undue burden on the States’ inherent sovereign powers under the Tenth Amendment because it continued to rely on greatly outdated data which had no place in our current times. finding it based on outdated data. [The Shelby v. Holder case was addressed in detail earlier). Consequently, as of that date (late June 2013), North Carolina no longer needed to preclear changes to its election laws. It was no longer under the historic presumption that any changes to election laws would be an intentional scheme to  disenfranchise African-American voters. North Carolina was free from the taint of its discriminatory past.

Up until that decision, the NC legislature had been working on a Voter ID bill. Voters were getting very impatient, but the legislators assured their constituents that a good, legally-sound bill would take time; it needed to be reviewed and re-reviewed by lawyers in order to make sure it would be “challenge-proof. When the Shelby decision came out, the legislature decided to enlarge the Voter ID bill into an omnibus bill, seeking several changes to what was without a doubt, an extensive early voting period. That bill would become Session Law (“SL”) 2013-381, which we all knew as the 2013 NC Voter ID bill.

Noting that the Shelby opinion came out just as blacks had become energized to vote and as the NC legislature was putting its Voter ID in final form, the 4th Circuit concluded that is when the so-called “racist” republicans (the court’s view) hatched their diabolical discriminatory scheme to disenfranchise black voters.

The opinion read:

“But, on the day after the Supreme Court issued Shelby County v. Holder, eliminating preclearance obligations, a leader of the party that newly dominated the legislature (and the party that rarely enjoyed African American support) announced an intention to enact what he characterized as an “omnibus” election law.  Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices used in North Carolina.  Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.”

The court continued: “In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications.”  I bring this particular statement up because of several reasons:

(1)  The justifications were sufficient for the district court. As a court is supposed to do, it defers judgement and wisdom to the legislative branch when reviewing a law, being careful not to substitute its judgement.

(2)  The court mocked the “justifications” offered by the NC legislature, namely voter fraud and potential for voter fraud, claiming the law was passed to “impose cures for problems that did not exist.”

(3)  Evidence of voter fraud was not allowed at the trial court (the District Court). I asked Jay Delancy of the Voter Integrity Project, the most reputable group addressing NC voter fraud, the group which has investigated and uncovered verified cases of actual voter fraud, voter fraud schemes, evidence of possible organized criminality in voter and election fraud, and serious potential opportunities for fraud, if he had been asked to give testimony, he told me that he was not allowed to.  It is important to note that the Circuit Courts are appeals courts and so it does not hear any testimony. It just reviews the record sent up from the District Court. If the District Court has no evidence (or allowed no evidence) of voter or election fraud, then the Circuit Court cannot assess the credibility of the issue and hence its justification for the Voter ID omnibus bill.

(4)  Consequently, the court lacks the foundation and knowledge to state that “the asserted justifications cannot and do not conceal the State’s true motivation…..  which is intentional discrimination.”

“The new provisions target African Americans with almost surgical precision….  And this bears the mark of intentional discrimination,” wrote the court.

In reaching its conclusion that the NC General Assembly “enacted the challenged provisions of the law with discriminatory intent,” the 4th Circuit pointed to what it called a “smoking gun.” As mentioned earlier, prior to the enactment of SL 2013-381, the legislature requested and received data as to the racial breakdown of usage of each of the early voting tools and practices that it was seeking to amend. The data was requested and collected in order to help enlighten and guide the General Assembly in its task to amend the state’s voting laws. The goal, as it had always been, was to address actual and potential voter fraud (and election fraud), and to remove and minimize such opportunities. The district court concluded as such but the 4th Circuit could only think in terms of race.

That “smoking gun,” by the way, had nothing to do with any requirement to show a photo ID to vote since that provision was a brand new provision and had not yet been in effect for any election; hence, it could not be evaluated. The “photo ID” requirement was actually a voter initiative. Voters were demanding it of their candidates and then when elected, of their representatives. Since only conservatives believe in voter integrity, it made sense that it became a priority when Republicans finally took control of the state government.

The 4th Circuit looked at the data the legislature collected and the changes it made to the state’s voting laws and concluded that according to the data, every change made was one that disproportionately affected African-Americans. Each of the voting tools and practices eliminated or restricted were ones that African-Americans disproportionately took advantage of.  They apparently take advantage of the first 7 days of early voting, their churches use the souls-to-the-polls Sundays, they take advantage of same-day voting and same-day registration, they, for some reason, are responsible for a disproportionate amount of the out-of-precinct voting (“of those registered voters who happened to vote provisional ballots outside their resident precinct, a disproportionately high percentage were African American”), and apparently, they disproportionately benefit from pre-registration (I don’t know how there can be any racial preference here at all). As the opinion read:

“In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications. Although the new provisions target African-Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation. ‘In essence,’ as in League of United Latin American Citizens v. Perry (2006), ‘the State took away minority voters’ opportunity because they were about to exercise it.’ This bears the mark of intentional discrimination.  Faced with this record, we can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent.”

Furthermore, it read: “The record makes obvious that the ‘problem’ the majority in the General Assembly sought to remedy was emerging support for the minority party.  Identifying and restricting the ways African-Americans vote was an easy and effective way to do so.  We therefore must conclude that race constituted a but-for cause of SL 2013-381, in violation of the Constitutional and statutory prohibitions on intentional discrimination.”

What I don’t understand is how the court concluded that a photo ID constituted intentional discrimination against African-Americans when many states already require photo ID’s to vote, including strict photo ID laws, and the law itself provides one free of charge to anyone who doesn’t have one or cannot afford one.  Furthermore, the Supreme Court held in Crawford v. Marion County (2008) that a strict photo ID requirement to vote, to prove the identity of the person seeking to cast a vote, does not constitute an undue burden at all on anyone in their exercise of the right to vote. It addressed a challenge to Indiana’s strict photo ID law and upheld it. (North Carolina’s Voter ID law was modeled after it).  There are black people in Indiana, there are poor black people in Indiana, there are elderly people there, and there are poor elderly there; yet the Supreme Court, after reviewing all the evidence and testimony given at the district court level, still concluded that requiring a photo ID as a condition to vote in person is not discriminatory and does not impose an undue burden.

The court, in its analysis,  I believe, committed several serious errors. First, it converted a privilege (a long early voting period, two Sunday voting days, same-day registration, etc) into an entitlement. Instead of looking into whether the changes would absolutely prevent any voter who really wished to vote from doing so, the court should have looked into whether blacks would likely be able to conform with the stream-lining of the voting laws. What are voters actually entitled to when it comes to early voting and opportunities to register? And what are African-Americans specifically entitled to, above and beyond what are offered to persons of other races?

Up until the end of 1990’s, voters in North Carolina were only “entitled to” one day to vote – Election Day, a Tuesday. If a voter couldn’t vote at that time, he or she could either submit an absentee ballot or forfeit the opportunity. At what point must we submit to making election increasingly more convenient, especially when apparently, only one group of voters benefits?  Remember, there are significant costs associated with early voting.

Second, despite the Supreme Court’s holding in Shelby that the DOJ and courts should no longer rely on or consider historical discrimination, the 4th Circuit did exactly that. In its opinion, it continually reminded the reader of North Carolina’s “shameful” history of “past discrimination.” In its introduction, the opinion noted: “Unquestionably, North Carolina has a long history of race discrimination generally and race-based vote suppression in particular.  Although we recognize its limited weight, see Shelby, North Carolina’s pre-1965 history of pernicious discrimination informs our inquiry. It was in the South that slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied blacks the most basic freedoms, and that state and local governments worked tirelessly to disenfranchise citizens on the basis of race.”

Third, in forming it’s opinion, the 4th Circuit did something that a court is never supposed to do (under the Separation of Powers doctrine) and that was to substitute its judgment for that of the legislature. To the court, the justifications in enacting the law may not have seemed good enough. Maybe the court felt that the excessive voting tools and voting mechanisms to benefit predominantly black voters were more important than addressing voter fraud, election fraud, ensuring voter confidence in NC elections, costs, etc. But that is exactly what a court must not do – substitute its judgement for that of the legislative body responsible to its particular constituency, its taxpayers. Here are some justifications that the 4th Circuit should have considered rather than dismiss:

(a)  Early voting imposes a tremendous cost. It is a rightful exercise of the legislative body to try to keep state costs at a minimum.

(b)  Maybe the General Assembly asked for the data, broken down by race, etc, in order to streamline early voting and to streamline the voting laws in such a way that when extra days, extra procedures benefit only one race instead of everyone, then that would seem a common sense way to look at making changes.

(c)  Maybe the General Assembly had access to information related to voter fraud in the state, when it is committed, by which group of people, etc and the changes made to the voting laws were intended to minimize the potential for voter fraud and election fraud. What I do know is that certain of the voting tools and procedures originally permitted in North Carolina have been great sources of problems. Pre-registration, same-day registration, same-day voting pose great potential for abuse and voter fraud. And what I also know is that decent people of good intentions have watched for years as the democrat-controlled State Board of Election did absolutely nothing when faced with hard evidence of actual voter fraud. It refused to prosecute any of the criminals.

(d)  Perhaps the streamlining of voter laws, its voting mechanisms and voting tools, was strictly political rather than racial. Since one cannot separate race from political party in North Carolina (blacks make up 22% of North Carolina’s electorate, and 83% identify with the Democrat Party), so every law affecting a political party in general also affects blacks particularly. In fact, having black skin is a better predictor for voting Democratic than party registration here in North Carolina. Maybe the General Assembly, with Republicans in the majority and wanting to continue enjoying political power, thought that it made sense to amend the voting laws by eliminating or paring back those tools and mechanisms that Democrats particularly take advantage of. The justification would be political (as political parties are prone to do) rather than racial. Here is something else to consider:

(e)  Perhaps the General Assembly had some data and facts and figures to support their photo ID requirement, such as:

(i)  Black voter turnout was higher than white voter turnout in 2012, including in states that had implemented voter ID laws. (This is according to U.S. Census Bureau data, and even the leftist PolitiFact)

(ii)  A recent study of the 2010 and 2012 primaries and general elections shows that voter ID laws did not disproportionately decrease minority turnout. (In fact, the study showed that turnout declined for people of all races from 43 to 31 percent, as ID requirements became stricter).  Contrary to what the left claims, photo ID requirements don not discriminate disproportionately according to race.

(iii)  Despite what the left argues and the mainstream media reports, voter fraud does exist. In 2012, the Pew Research Center found the following:

  • There were almost “24 million active voter registrations in the US which were either invalid or inaccurate
  • There were almost two million dead Americans were still on the active voting lists.
  • 12 million voter records were riddled with “incorrect addresses or other errors.”
  • Almost 2.75 million voters were registered in over one state.
  • 6.4% of all noncitizens voted illegally in the 2008 presidential election, and 2.2% voted in the 2010 midterms. (80% of illegals vote Democratic)

(iv)  In a close election, voter fraud could play a significant role. There is evidence that Al Franken, in fact, won his election due to voter fraud, with illegals playing a part.

(v)  Polls show that the vast majority of Americans support voter ID laws, including Democrats and blacks. Poll after poll confirms this, including the Rasmussen Poll, the FOX News Poll, and the Washington Post Poll.

Again, a court’s role is simple and must never presume to impart a different intention to, or to substitute its judgement for that of the legislative body.  That is why, under the Separation of Powers doctrine, each branch of government has its own separate role.

III.  THE ANALYSIS

So let’s look at the NC Photo-Voter ID Bill and assess it in light of the requirements of the 15th and 14th Amendments, as guided by the Supreme Court’s opinions in Shelby v. Holder and Crawford v. Marion County.

First of all, recall that the 14th and 15th Amendments, together with the 13th, are the Reconstruction amendments abolishing slavery and then granting blacks rights of citizenship (constitutional and civil. The amendments were intended to serve a specific purpose, necessitated by the political situation created by an unconstitutional war and in part, motivated by a desire to punish the southern states for seceding.

All three amendments, for the particular purposes they served, were morally justified – the 13th to abolish the vile and unconscionable institution of slavery, the 14th to grant citizenship to the free blacks and newly-freed slaves (and in fact, to define citizenship since nowhere in the Constitution is it defined), to ensure they were recognized with the same rights as every other citizen, to make sure they would not be denied due process should their liberty rights or property rights be violated, and to make sure they would be assured equal protection under the law, and the 15th to make sure that blacks would not be denied the right to vote.

The 15th Amendment was indeed striking in what it accomplished. On March 30, 1870, the amendment immediately made voters out of 4,000,000 people who had only 13 years earlier, been declared by the highest tribunal in the land (the Supreme Court, in the 1857 Dred Scott decision), as not being capable of becoming citizens of the United States because the black man who never intended to be part of the country so created, that “black men had no rights which the white man was bound to respect” (conclusions articulated by Justice Roger Taney, who wrote the opinion in Dred Scott). But let’s not read anything more into the language or intent of the 15th Amendment than was intended.

The 15th Amendment simply states that the right to vote cannot be denied or abridged to a person on account of race (ie, blacks cannot be denied the right to vote).  We know what the word “denied” means and we know what the word “abridged” means (to curtail). The NC Photo-Voter ID Bill does nothing to deny or abridge the right. It puts reasonable procedures in place to guarantee the right to vote for everyone Every instance of voter fraud cancels someone’s rightful vote. Obtaining an identification with a photograph is not unduly burdensome and is, in fact, is something that 99.99% of the people already do once they come of age and what they need to carry out many of life’s functions – such as get medication, pick up a check, cash a check, use a check or credit card, enter a school building, enter a courthouse, fly, etc. The Supreme Court has already ruled (in 2008, in the case of Crawford v. Marion County Board of Elections) that a voter ID law requiring persons who show up at the polls to vote to present a government-issued form of photo identification (strict photo ID requirement) presents no meaningful burden to a person’s right to vote.  It’s 2018, for crying out loud !!!

The second section of the 15th Amendment which provides that “Congress shall have power to enforce this article by appropriate legislation,” does NOT imply that the Voter Rights Act is a permanent law to be used on the South.  That section simply means that when states or political subdivisions thereof employ verifiable schemes of black voter suppression or actual disenfranchisement of the black vote, the federal government has the authority to step in to correct the situation in order to give meaning to the guarantee in Section 1. The Supreme Court, in Shelby County v. Holder (2013) made the constitutional determination that the Voting Rights Act has outlived its usefulness against the south because those invidious schemes no longer exist.

To repeat, Shelby removes North Carolina from the preclearance requirement with the federal government (NC can now do its own thing !) and Crawford stands for the constitutional bright-line rule that a strict photo ID is not inherently racist or discriminatory and does not pose any meaningful burden on a person’s right or ability to vote.

Furthermore, according to the Supreme Court, all rights can be abridged. We already know the first amendment rights to speech and religion, the rights to be free from searches, and the right to obtain and possess guns are already abridged.

The 14th Amendment provides that all laws should be equally applied to everyone (“Equal Protection;” everyone is protected or served equally by our laws).  The 14th Amendment requires “equal” protection and not “special” protection. The NC Photo-Voter ID Bill is neutral on its face and is written to ensure that every single voter can meet its requirements, including the poor and the elderly. A photo ID will be provided, free of charge, to anyone who cannot afford one and it will be provided at all county board of elections (which is more convenient than waiting in line at DMV locations).  Everyone knows someone that drives. To make any argument that certain people are too poor or too isolated to be able to find someone to give them a ride would be to assume we never modernized or entered the industrial era. A country, and a court system, so intent on moving forward with such sweeping social change like same-sex marriage and transgender acceptance can’t at the same time, assume people can’t get access to a car or a phone or a computer or a DMV or other county office.

Just because changing a law makes it easier or more convenient for only one group to vote doesn’t mean that the 15th or 14th Amendment requires that change. Heck, extending the election season for a whole month and including 4 “souls-to-the-polls” Sundays would be really convenient, right?  Taking votes over the phone would be convenient, yes?  Allowing one family member to vote for everyone in the family, and extended family, would be perfect, for sure!  Just because the legislative body or the voting public doesn’t want to make the changes (and sacrifice voter integrity) doesn’t mean the bill is racist or the voting public is racist, or the state legislature is racist. Groups like the North Carolina NAACP have to stop that nonsensical rhetoric.

NOTHING in the VOTER ID law of 2013 or in the current draft Photo-Voter ID law integrally impairs ANYONE’s right to vote. There is the single entitlement – the right to vote on Election Day (as was the law in NC up until the end of the 21st century (late 1990’s) and the right to submit an Absentee ballot if a person can’t make it to the polling location in person. All the other voting tools and mechanisms are privileges, or “indulgences” (as Justice Scalia termed them). The state interest (in honest, fraud-free elections that comports with the constitutional principle of “one citizen, one vote”) clearly outweighs any claims that a strict photo ID requirement may burden one group of voters. Again, the expectation is that EVERYONE’S vote is important, and the legislature has an obligation to protect the integrity of each person’s vote. Every instance of voter fraud, which we know has become a serious problem here in North Carolina, diminishes the weight of honest citizens. Every instance of voter fraud cancels the vote of someone who has voted legally.

Recently, I watched a YouTube video by journalist Ami Horowitz to examine just what people think of the NC photo ID law and the argument that blacks in North Carolina don’t all have a photo ID and that some simply can’t get one. It was rather enlightening. Ami went to the campus of UC-Berkeley to find out what college students think of voter ID laws and whether they believe they suppress the black vote. Their responses are classic liberal rhetoric. It is clear that white liberal college students have been indoctrinated by the rhetoric of Democrats and by such racist groups as the NAACP which alleges and alleges and repeats and repeats the same accusation – that voter ID laws are racist, they target blacks in their ability to vote, and that blacks are a particularly disadvantaged, incapable, uninformed, unskilled group of people.

Horowitz then took his “On the Street” segment to east Harlem, New York City to find out what black people there thought of the answers that the UC-Berkeley students gave. Their responses were clear – the answers given by the white UC-Berkeley students was offensive, and yes, racist.  Each person questioned had a photo ID on them, they said to be without one would be irresponsible, and not a single one thought it would be impossible to get one. To them, it appeared that blacks in the South have been stereotyped, to the detriment of their race in general. They could not understand the notion that fellow blacks couldn’t get a photo ID, something that everyone in modern society must have.

The point I am clumsily making is that groups like the NC NAACP and other groups that pursue policy (including challenging common-sense Voter ID and Photo ID laws) by promoting the inability of blacks, by alleging that whites use government to scheme in order to disenfranchise blacks, and by claiming that blacks are still the target of intentional discrimination are indirectly perpetuating the old stereotype that blacks are victims, that blacks are a disadvantaged race, that they are somehow less capable than every other race to conform with neutral laws. How offensive is it to allow the same stereotypes to be perpetuated as the one cited by Justice Taney in the Dred Scott decision? That was 160 years ago.  By constantly using arguments like blacks are too poor to be expected to get an ID, that they don’t have cars to drive to a DMV to get a free county-issued ID, that they are too uneducated to understand laws, that they can’t get to a computer (all libraries have them for people to use), that they don’t have cell phones (even though Obama gave every Democrat a phone), and that even if they could get to a computer, they lack the skills to use one or the ability to learn how to use one, they are teaching and indirectly recreating the segregated society that we left behind long ago, where there exists two general races – blacks who are generally inferior and unable to do for themselves and all others, who have no problem complying with laws.

We’ve worked too hard as a society – passing laws, enacting policies, federalizing traditional state sovereign functions, remedying past wrongs, whites teaching their children that skin color is irrelevant, and hopefully blacks teaching their children the same, and reinforcing in all school children, and in fact, every single person, of the plight of blacks in this country (Black History Month) – to put the wrongs of the past behind us and to move forward in a colorblind society, judging one another not by the color of our skin (which we can’t change) but by the content of our character (which is something each of us controls). It serves no purpose whatsoever to keep rehashing the past and reminding folks of how bad our country used to be. We can’t move forward until the restraints of the past are removed, or ignored. Black activist groups such as the NC NAACP certainly aren’t empowering blacks by poisoning them with the notion that they continue to need special protections in order to take an equal place in American society.

IV.  CONCLUSION

There is a reason the NC NAACP fights so hard to oppose a Voter ID. It truly can’t be that the NAACP and the Democratic Party believe that blacks are unable to obtain a photo ID (something every other race has no problem obtaining). No, the real reason is that the Democratic Party NEEDS the ability and opportunity to perpetrate fraud in the election process to order to win elections. It’s been that way since the illegal election of John F. Kennedy, a Democrat, as president, and even the election of Roy Cooper, a Democrat, as North Carolina’s governor. The NC NAACP and Democratic Party need elections in North Carolina to be loosely-controlled. NC is a potential swing state and because both groups stand on the same side of the political fence, they have more than a vested interest in how politics plays out.

The NC NAACP and Democratic Party in North Carolina continue to imply that blacks are disadvantaged in many many respects [poor, uneducated, uniformed, more likely to move around (you need a car for that!!), have more health problems, less access to technology, have less ability to comprehend laws, etc etc], are inferiorly-situated (because of the aforementioned issues), and inferior in general (by their claims of being less educated, less knowledgeable, generally un-informed and less capable) in order to make the case that a photo ID is inherently discriminatory. We see clearly which party is the real racist party.  What I don’t understand  is why blacks tolerate it. Their opposition to voting laws that take away excessive mechanisms and voting opportunities and tools, their support for Affirmative Action programs, and their constant demands for “special protection” rather than “equal protection” are all tacit ways they accept their inferior status in our society. Where is their dignity? Where are the black activist groups to stand up to oppose these positions on the grounds that they are racist and perpetuate horrible stereotypes?

Again, the real reason the NC NAACP and the Democratic Party fight so hard to oppose a strict photo voter ID law is because requiring a photo ID at the polls will frustrate their schemes to perpetrate voter fraud and blacks, as always, are the perfect group to manipulate and use to challenge common-sense laws. In 2018 (53 years after the Civil Rights Act passed and 63 years after the forced integration of public schools) we should NOT be having this conversation and blacks should NOT allow themselves to still be characterized as inferior or somehow behind all other races (including Hispanics).  Let’s be clear — both parties can benefit from voter fraud, but only one party is dishonest enough to want to do so.  And also, let’s be clear…  Enforcing a strict Photo ID has been challenged as discriminatory and as an undue burden on blacks and on the very elderly. Again, the Supreme Court entertained that challenge in Crawford v. Marion County (2008), against Indiana’s strict photo ID Voter ID law. It held that a STRICT photo ID requirement to vote does NOT amount to an unnecessary burden on anyone’s right to vote. Both a liberal justice and a conservative justice wrote opinions to that effect (yes there were two majority opinions!). In North Carolina, the challenge to our Voter ID law back in 2015-2016 was that it was discriminatory against blacks. The challenge was not that it burdened the elderly or that it burdened all minorities. (the review by the 4th Circuit was that it was intentionally discriminatory against blacks).  We have to stop falling for the NC NAACP and Democratic Party bullshit. We should all be horribly offended at Spearman’s words, just as a liberal college student is offended at hearing Ann Coulter or Ben Shapiro.

Reverend Spearman and the NC NAACP like to point to President Grant and his “clear signature” on the 15th Amendment and his message to Congress as to the historic nature of the amendment, but they cherry-pick with his message. In that special message to Congress delivered by President Ulysses S. Grant on March 30, 1870 in honoring the passage of the 15th Amendment, he offered this encouragement:

“I call attention of the newly enfranchised race to the importance of their striving in every honorable manner to make themselves worthy of their new privilege. To the race more favored heretofore by our laws I would say, withhold no legal privilege of advancement to the new citizen. The framers of our Constitution firmly believed that a republican government could not endure without intelligence and education generally diffused among the people. The Father of his Country, in his Farewell Address, uses this language: ‘Promote, then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.’”

Most people would hope that groups like the NC NAACP would put politics of race aside, stop inferring that the racism of the Reconstruction era still lingers in the hearts of white people and that every act of government is intentionally designed to somehow disenfranchise or otherwise discrimination against blacks, and instead take their cue from President Grant – to empower blacks not to cling to a history of victimhood but rather to project empowerment and equality through education and intelligence.

 

References:

The NC NAACP Addresses the Voter ID Law, November 26, 2018 at the NC State Capital in Raleigh –  https://www.wral.com/news/state/nccapitol/video/18023119/

NAACP Outlines of Voter ID Protest –  https://www.wral.com/news/state/nccapitol/video/17996798/

Opinion, US District Court for the Middle District of North Carolina, North Carolina NAACP v. Pat McCrory, 2016 (upholding the 2013 NC Voter ID law) –  http://www.ncmd.uscourts.gov/sites/ncmd/files/opinions/13cv658moo_0.pdf

Opinion, 4th Circuit Court of Appeals, North Carolina NAACP v. Pat McCrory, 2016 (reversing the District Court opinion and striking down the 2013 NC Voter ID law) –  http://www.ca4.uscourts.gov/Opinions/Published/161468.P.pdf

Opinion, US Supreme Court, Crawford v. Marion County Board of Elections, 553 U.S. 181 (2008) –  Opinion by Justice Stevens –  https://www.law.cornell.edu/supct/html/07-21.ZO.html

Opinion by Justice Scalia –  https://www.law.cornell.edu/supct/html/07-21.ZC.html

VIDEO:  Ami Horowitz “How White Liberals Really View Black Voters”  –  https://www.youtube.com/watch?v=rrBxZGWCdgs

Ulysses S. Grant’s Special Message to Congress, March 30, 1870 (after the passage of the 15th Amendment)  –  https://www.nps.gov/ulsg/learn/historyculture/grant-and-the-15th-amendment.htm

Shelby County v. Holder, 570 U.S. __ (2013) –  https://www.law.cornell.edu/supremecourt/text/12-96

Jay Delancy, “The Voter Fraud Too Many Deny,” US News & Observer, February 18, 2016. Referenced at: https://www.newsobserver.com/opinion/op-ed/article61140462.html

Jay Delancy, “The Voter Integrity Project (VIP) Issues Response to Draft NC Voter ID Bill (v 0.9),” November 27, 2018.  Referenced at:  https://voterintegrityproject.com/draft-voter-id/ (or  https://voterintegrityproject.com/draft-voter-id/?fbclid=IwAR1SAo_s5tVW-QV5oEFO9Frf5AAXU6FhgZz7Z4N3pSRWCitLXXVyxfhtKGM

Aaron Bandler, “5 Statistics That Show Voter ID is Not Racist,” Dailywire, August 2, 2016.  Referenced at:  https://www.dailywire.com/news/7992/5-statistics-show-voter-id-not-racist-aaron-bandler

NC’s draft Voter – Photo ID Law (S.824), “Implementation of the Constitutional Amendment Requiring a Photographic Identification to Vote” –

https://www.ncleg.net/Sessions/2017/Bills/Senate/PDF/S824v2.pdf

Voting Rights Act of 1965 –  https://www.ourdocuments.gov/doc.php?flash=false&doc=100&page=transcript

Government Relations, Regulatory Affairs and Contracting Group, “Supreme Court Strikes down Voting Rights Act’s ‘Preclearance’ Formula,” Ballard Spahr, June 27, 2013.  Referenced at:  https://www.ballardspahr.com/alertspublications/legalalerts/2013-06-27-supreme-court-strikes-down-voting-rights-acts-preclearance-formula.aspx

Thomas J. Espenshade, Chang Y. Chung, and Joan L. Walling, (December 2004), “Admission Preferences for Minority Students, Athletes, and Legacies at Elite Universities,” Social Science Quarterly, December 2004. Referenced at: http://www.princeton.edu/~tje/files/Admission%20Preferences%20Espenshade%20Chung%20Walling%20Dec%202004.pdf    [OR accessible from Wiley Online Library, 85 (5): 1422–46].

BIRTHRIGHT CITIZENSHIP: Does the 14th Amendment Really Recognize It for Illegal Aliens?

ILLEGAL IMMIGRATION - Birthright Citizenship

by Diane Rufino, November 16, 2018

The term “birthright citizenship” refers to the idea that you can become a citizen of a country simply by being born there. The fancy legal term is jus soli, “right of the soil” (as opposed to the policy termed jus sangunis (“right of blood”) by which nationality or citizenship is not determined by place of birth, but by having an ancestor who is a national or citizen of the state.

In this country, citizenship is defined not in the Constitution per se, but in the first section of the 14th Amendment. It is referred to as the Citizenship Clause” and reads: “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…… “

It is currently the object of great contention right now after President Trump announced he was planning on eliminating “birthright citizenship” as it pertains to those entering our country illegally.

The purpose of this article is to explain why the “Citizenship Clause” cannot be understood, or should be interpreted, to include birthright citizenship to babies born to illegal aliens.

The 14th Amendment is one of the three post-Civil War Reconstruction era amendments to the Constitution – the 13th (abolishing slavery and indentured servitude), 14th (giving freed blacks citizenship and civil rights), and 15th (giving blacks the right to vote). It passed in the US House, after several proposals were considered, in May 1866 (House Resolution 127, 39th Congress), sent to the Senate where amendments were added, and sent back to the House which eventually agreed to the Senate amendments on June 18, 1868. On June 18, a concurrent resolution requesting the President to transmit the proposal to the executives of the several states was passed by both houses of Congress.

It’s general intent, at least that of the first section, was to vest newly-freed slaves, and other African-Americans with the rights of citizenship in light of the 13th Amendment which had abolished slavery and in light of the Dred Scott decision of 1857 which held that any person descended from Africa (Africans), whether slave or free, is not a citizen of the United States, according to the US Constitution.

I. HISTORY:

In 1857, the US Supreme Court handed down arguably the most offensive opinion issued by the high court, or any court – the Dred Scott v. Sandford opinion (commonly just referred to as the Dred Scott opinion).

The case had been in the court system for more than a decade. Scott had been born into slavery in 1795. In subsequent years, he lived in two parts of the United States that didn’t allow slavery, Illinois and Wisconsin, along with his master. When his current master died in 1846, Scott filed suit on behalf of himself and his wife, also a slave, to gain their freedom. The case was heard by three other courts as it made its way to Washington.
The Court ruled, in a 7-2 opinion, against Scott. Judge Roger Taney wrote the opinion of the Court, which highlighted, include the following:

4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States. The words “people of the United States” and “citizens” are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the “sovereign people,” and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

5. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its “people or citizens.” Consequently, the special rights and immunities guaranteed to citizens do not apply to them. And not being “citizens” within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.

6. The only two clauses in the Constitution which point to this race treat them as persons whom it was morally lawfully to deal in as articles of property and to hold as slaves.

7. Since the adoption of the Constitution of the United States, no State can by any subsequent law make a foreigner or any other description of persons citizens of the United States, nor entitle them to the rights and privileges secured to citizens by that instrument.

8. A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens as to all the rights and privileges enjoyed by them within its dominion and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State.

9. The change in public opinion and feeling in relation to the African race which has taken place since the adoption of the Constitution cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted.

[Taken from the Opinion – Dred Scott v. Sandford, 60 U.S. 393. Go to the Appendix for more information on the case]

In a poor exercise of reasoning, Judge Taney argued: “There are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.”

The Dred Scott decision (“opinion’) came just two days after President James Buchanan took office, and it set the tone for his controversial term that led to the Civil War. The decision was celebrated in the South but the Abolitionists in the North were outraged. The court also declared the Missouri Compromise of 1820 to be unconstitutional. And it said that Congress did not have the authority to prohibit slavery in the territories, which would seem to prohibit Lincoln from his campaign promise to prohibit the spread of slavery into the western territories.

With the Dred Scott decision and its voiding of the Missouri Compromise, thus making slavery legal in all U.S. territories, and the promise by candidate Abraham Lincoln that he would enforce the Morrill tariff (the highest tariff yet, up to 47% by 1863) passed by Congress in May 1860 and signed by President Buchanan), the election of 1860 was a completely sectional election – pitting the North against the South.

In November 6, 1860, Lincoln was elected the 16th president of the United States, without an actual majority (less than 40%) and without a single vote from any of the Southern states that would later form the Confederacy (except Virginia, where he got 1%). On December 20, the South Carolina state legislature voted to secede from the Union (issuing its “Declaration of the Immediate Causes which Induce and Justify the Secession of South Carolina” on December 24). Six other states followed suit before Lincoln was even inaugurated: Mississippi (on January 9, 1861), Florida (on January 10), Alabama (on January 11), Georgia (on January 19), Louisiana (on January 26), and Texas (on February 1). On February 8, the seceded states met and held a convention in Montgomery, Alabama and agreed to form a Union – the Confederate States of America. They adopted a constitution at that convention, which by many accounts was superior to the US Constitution.

Lincoln was inaugurated on March 4, 1861 and on April 12, shots were fired by South Carolina on Fort Sumter (held by Union Major Anderson), giving him the pretext to invade the South and begin the Civil War. Rejecting the natural right of secession, he characterized the actions of the Southern states as “rebellion,” and used the armed forces of the United States to “force them back into the Union” (which was confusing since Lincoln claimed they never left the Union since they didn’t have the right to do so).
Lincoln called the question about whether the Southern states were in or out of the Union a “pernicious abstraction.” “Obviously,” he explained, they were not “in their proper practical relation with the Union.

After General Robert E. Lee’s surrender at Appomattox on April 9, 1865 and Lincoln’s assassination on April 14 (he died the following morning), the country entered into a decade-long period, or process, known as “Reconstruction” – the “reconstructing” of the Union. Through this process of Reconstruction, the Northern-dominated federal government attempted to resolve the political and constitutional issues that led to the Civil War and in effect, through punishment of the South (those responsible for seceding and those in support of the Confederacy) and by changing the body politic of the former Confederate states. The priorities were: to guarantee that Confederate nationalism and slavery were ended, to ratify and enforce the 13th Amendment which outlawed slavery; the 14th Amendment which guaranteed dual U.S. and state citizenship to all native-born residents, regardless of race; and the 15th Amendment, which made it illegal to deny the right to vote because of race.

The US House passed the 13th Amendment in January of 1865, without any representation from the Southern states (their representatives were not allowed to be seated), and then sent to the states for ratification. As for the former Confederate states, the amendment was submitted to “reconstruction governments,” devoid of anyone that had “supported the Confederacy.” The question as to whether these were in fact legitimate legislatures is a valid one. Nevertheless, the 13th Amendment was ratified by 3/4 of the states, and hence certified as valid, on December 18, 1865.

Next would come the 14th Amendment.

It would play an important role in Reconstruction (in the North’s reconstruction of the South back into the Union).

When it looked as if the North would defeat the South, even before Sherman’s march, Republicans had began to make plans for the reconstruction of the war-torn and still greatly divided country. Their most important concerns were for the formal adoption of the 14th Amendment (which they intended would elevate newly-freed slaves and free black persons to full citizenship), elimination from power anyone who supported the Confederacy, and the adoption of black male suffrage provisions (to dilute the South Democrats) as conditions for re-admission.

The 14th Amendment was intended to memorialize the guarantees of the 1965 Civil Rights Act in the US Constitution. In 1865, Congress passed what would become the Civil Rights Act of 1866, guaranteeing citizenship without regard to race, color, or previous condition of slavery or involuntary servitude. The bill also guaranteed equal benefits and access to the law, a direct assault on the Black Codes passed by many post-war states. The Black Codes attempted to return ex-slaves to something like their former condition by, among other things, restricting their movement, forcing them to enter into year-long labor contracts, prohibiting them from owning firearms, and preventing them from suing or testifying in court.

Although strongly urged by moderates in Congress to sign the bill, President Andrew Johnson vetoed it on March 27, 1866. In his veto message, he objected to the measure because it conferred citizenship on the freedmen at a time when 11 out of 36 states were unrepresented in the Congress, and that it discriminated in favor of African-Americans and against whites. Three weeks later, Johnson’s veto was overridden and on April 9, the measure became law. Despite this victory, even some Republicans who had supported the goals of the Civil Rights Act began to doubt that Congress really possessed constitutional power to turn those goals into laws. The experience also encouraged both radical and moderate Republicans to seek Constitutional guarantees for black rights, rather than relying on temporary political majorities.

While the Civil Rights Act of 1866 addressed many of Congress’s concerns about citizenship and civil rights, several members of Congress worried about the Act’s constitutionality and permanence. Two months after the Act became law, Congress would approve H.R. Res. 127, which when ratified by the states would become the 14th Amendment. Addressing citizenship in words almost identical to those of the 14th Amendment, the Civil Rights Act declared: “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . . .”

The Act then addressed certain specified civil rights by saying:

“Such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

In late 1865, Rep. John A. Bingham of Ohio, who was a member of the Joint Committee of Fifteen on Reconstruction, proposed a constitutional amendment which would enable Congress to safeguard “equal protection of life, liberty, and property” of all citizens; this proposal failed to pass the House. In April 1866, the Joint Committee forwarded a third proposal to Congress, a carefully negotiated compromise that combined elements of the first and second proposals as well as addressing the issues of Confederate debt and voting by ex-Confederates. The House of Representatives (39th Congress) passed House Resolution 127 several weeks later and sent to the Senate for action. The resolution was debated and several amendments to it were proposed. Amendments to Sections 2, 3, and 4 were adopted on June 8, 1866, and the modified resolution passed by a 33 to 11 vote (5 absent, not voting). The House agreed to the Senate amendments on June 13 by a 138–36 vote (10 not voting). The “Citizenship Clause” was added by Senator Jacob Howard of Michigan.

That is the very simplified history of the 14th Amendment.

As most of you know, either through your reading, your learning of Supreme Court or other federal court opinions regarding civil rights or discrimination (the 14th Amendment being the #1 basis for lawsuits), your history courses, your study of law, or even just listening to the heated debates by legal experts and pundits on TV, the absolute meaning of the 14th Amendment is not known; it means different things to different people. It meant one thing to the Supreme Court at the end of the 20th century (Slaughterhouse cases, 1873) and early 21st century, but meant something else in later cases.

So I think it’s important to take a closer look at the proposal of the amendment and its adoption by the US House and Senate.

Congress had two important concerns about civil rights in 1866. One was that the Bill of Rights by itself did not limit the actions of state governments and the other was the Congress lacked any express power to enforce the Bill of Rights against the states. Congress ultimately addressed these concerns in Sections 1 and 5 of the 14th Amendment. But before Congress approved H.R. Res. 127, the House considered another provision, H.R. Res. 63, which had similar objectives. H.R. Res. 63 arose in the Joint Committee. On January 12, the Joint Committee formed a subcommittee on the powers of Congress.209 On January 27, 1866, Representative Bingham reported to the full committee that the subcommittee had approved a proposed amendment. The subcommittee’s proposal said:

“Congress shall have power to make laws which shall be necessary and proper to secure to all persons in every state full protection in the enjoyment of life, liberty and property; and to all citizens of the United States in any State the same immunities and equal political rights and privileges.”

Although the Journal of the Joint Committee does not report the debates of the full committee, it does show that the full committee made minor amendments to the proposal on both January 27 and February 3. On February 10, the Committee then voted to send the proposed amendment to both Houses of Congress as a proposed constitutional amendment.

On February 26, Representative Bingham introduced the proposed constitutional amendment to the House as a joint resolution, H.R. Res. 63. The proposal, as it had been revised by the full committee, said:

“The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States (Art. 4, Sec. 2), and to all persons in the several States equal protection in the rights of life, liberty, and property (5th Amendment).”

After quoting the Privileges and Immunities Clause in Article V and the last clause of the Fifth Amendment, Representative Bingham said:

“Sir, it has been the want of the Republic that there was not an express grant of power in the Constitution to enable the whole people of every State, by congressional enactment, to enforce obedience to these requirements of the Constitution. Nothing can be plainer to thoughtful men than that if the grant of power had been originally conferred upon the Congress of the nation, and legislation had been upon your statute-books to enforce these requirements of the Constitution in every State, that rebellion, which has scarred and blasted the land, would have been an impossibility.”

Representative Bingham explained that the proposed amendment would solve these problems. He said: “The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today.”‘

The House of Representatives debated H.R. Res. 63 on February 26-28. Despite Representative Bingham’s arguments, opponents of the proposal strongly objected that it went too far. The Supreme Court summarized the opposition to H.R. Res. 63 in City of Boerne v. Flores (1997):

“Some argued that the] proposed Amendment gave Congress too much legislative power at the expense of the existing constitutional structure. Democrats and conservative Republicans argued that the proposed Amendment would give Congress a power to intrude into traditional areas of state responsibility, a power inconsistent with the federal design central to the Constitution. Typifying these views, Republican Representative Robert Hale of New York labeled the Amendment “an utter departure from every principle ever dreamed of by the men who framed our Constitution,” and warned that under it “all State legislation, in its codes of civil and criminal jurisprudence and procedure . . . may be overridden, may be repealed or abolished, and the law of Congress established instead.” Senator William Stewart of Nevada likewise stated the Amendment would permit “Congress to legislate fully upon all subjects affecting life, liberty, and property,” such that “there would not be much left for the State Legislatures,” and would thereby “work an entire change in our form of government.” Some radicals, like their brethren “unwilling that Congress shall have any such power . . . to establish uniform laws throughout the United States upon . . . the protection of life, liberty, and property,” also objected that giving Congress primary responsibility for enforcing legal equality would place power in the hands of changing congressional majorities.”

On February 28, 1866, when it appeared that the proposal would not gain approval, the House voted to postpone consideration until “the second Tuesday in April” (i.e., April 10, 1866).

After these unsuccessful initial attempts to approve the previously discussed joint resolutions proposing amendments to the Constitution, Congress finally succeeded with H.R. Res. 127, the provision that became the 14th Amendment. H.R. Res. 127 was broader in scope than the prior proposals. It addressed all of the subjects of H.R. Res. 9, H.R. Res. 51, and H.R. Res. 63. It also included a provision on the eligibility of former Confederate officials to hold government office.

On April 21, 1866, Representative Stevens introduced into the Joint Committee “a plan of reconstruction, one not of his own framing, but [one] which he should support.” This proposal contained five sections. Section 1 of the April 21 proposal in the Committee said: “No discrimination shall be made by any state, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude.”‘ The Committee revised this sentence substantially before submitting it to Congress. As introduced in Congress, the proposal said:

“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.”

Two features of the revision in the Committee deserve mention. First, as the text shows, the Committee decided to drop all mention of race. The revised version sounds very much like H.R. Res. 63, but does not say anything about the powers of Congress.

Section 2 of the April 21 proposal would have banned racial discrimination with respect to the right to vote. The proposal said: “From and after the fourth day of July, in the year one thousand eight hundred and seventy-six, no discrimination shall be made by any state, nor by the United States, as to the enjoyment by classes of persons of the right of suffrage, because of race, color, or previous condition of servitude.”

The Committee, however, deleted the original Section 2. Because the Journal does not record committee discussions, the reasons for deleting this provision are lost to history. Voting discrimination became a subject that ultimately would be addressed by the 15th Amendment (ratified in 1870).

The Joint Committee debated the proposal of April 21 and, as explained above, made various revisions before approving it for submission to Congress on April 28, 1866. Representative Stevens introduced the proposal into the House on April 30, 1866, as H.R. Res. 127, but the House voted to postpone discussing the proposal until May 8.

On May 8, Representative Stevens gave a long speech in which he explained the meaning and purpose of each section. The House debated H.R. Res. 127 on May 8, 9, and 10. On May 10, the House voted to approve H.R. Res. 127, without amendment, by a two-thirds majority (128 yeas, 37 nays, and 19 not voting). [NOTE: The House never reopened H.R. Res. 63. On June 6, 1866, Representative Bingham moved that it “be indefinitely postponed, for reason that the constitutional amendment [H.R. Res. 127] already passed by the House covers the whole subject matter.” The House approved the motion. The Senate never considered H.R. Res. 63].

H.R. Res. 127 was introduced into the Senate on May 10, but no discussion occurred on that day.” On May 23, Senator Howard initiated the Senate’s consideration of H.R. Res. 127 by analyzing each of its five sections. The Senate discussed H.R. Res. 127 as a committee of the whole on May 23, 24, and 29, and during at time, the made various amendments to it. Discussions continued in both committee and in regular sessions until June 8. [Regular sessions on May 30 and 31, and as a committee of the whole from June 4 to June 8].

On May 23, 1866, Senator Benjamin Wade, Republican of Ohio, suggested that, given the importance in Section 1 of a guarantee of privileges or immunities to United States citizens, it was imperative that a “strong and clear” definition of citizenship be added to the proposed 14th Amendment – a “Citizenship clause.” He suggested “persons born in the United States or naturalized by the laws thereof.” Senator Howard, Republican of Michigan, responded on May 30, 1866, with a proposal that was drafted in the Joint Committee on Reconstruction which eventually became the first sentence of the 14th Amendment as it was finally adopted. It read: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” Both Howard and the Joint Committee evidently placed some importance on the addition of the jurisdiction clause, which meant, at a minimum, that not all persons born in the United States were automatically citizens, but also had to be subject to the jurisdiction of the United States.

This is how we got the “Citizenship Clause” of the 14th Amendment.

Senator Howard and others discussed the purpose, meaning, and limitations of this amendment to the proposal on May 30. He explained that the purpose of the first sentence was to eliminate doubt caused by the Dred Scott decision on the issue of citizenship. He said: “It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.” In that statement, Senator Howard was not explaining the meaning of the first sentence of Section 1, but instead the purpose that the first sentence serves. The sentence had the effect of overruling the Supreme Court’s decision in Dred Scott that persons of African descent could never be citizens. Senator Revardy Johnson, who as an attorney had represented John Sanford against petitioner Dred Scott before the Supreme Court, supported the amendment. Without discussing his former role in the matter, he subtly mentioned that “serious questions have arisen, and some of them have given rise to embarrassments, as to who are citizens of the United States, and what are the rights which belong to them as such; and the object of this amendment is to settle that question.”‘ When the matter came before the House, Representative Stevens merely commented: “This is an excellent amendment, long needed to settle conflicting decisions between the several States and the United States.”

His remarks introducing the new language in the Senate have attracted much attention — and much controversy.

Senator Howard said:

“I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”

On June 8, 1866, the Senate approved the amended version of H.R. Res. 127 by a two-thirds vote (33 yeas, 11 nays). Because the Senate had approved an amended version, the joint resolution had to go back to the House to see if the House would concur in the Senate’s amendments. The amended version of H.R. Res. 127 was introduced in the House on June 9. The House debated the amended version on June 13. Rep. Thaddeus Stevens, the Committee Chair, briefly described the Senate’s amendments, some of which he approved and some of which he disfavored. In the end, the House concurred in the Senate’s version by a two-thirds vote (120 yeas, 32 nays, and 32 not voting) and the 14th Amendment was passed by Congress.

On June 16, Congress sent the approved version of joint resolution H.R. Res. 127 to the Secretary of State William Seward for delivery to President Andrew Johnson. President Johnson opposed the 14th Amendment, but Article V assigns no role to the President in the Amendment process. Accordingly, President Andrew Johnson’s only duty was to send the proposed 14th Amendment to the states, which he instructed Seward to do on June 22, 1866.

Initially, none of the ex-Confederate states ratified the 14th Amendment in 1866, except Tennessee. Accordingly, Tennessee was quickly re-admitted to the Union – reclaiming full status as a state and having its representatives allowed once again to sit in Congress.
In response, the Northern-dominated Congress passed a series of punishing laws aimed at making sure the South came back into the Union on the terms it required – the Reconstruction Acts. It passed four of them (three in 1867 and one in 1868)

The essential provisions can be summed up as follows:

• The Reconstruction Acts of 1867 created five military districts in the seceded states (again, with the exception of Tennessee, which ratified the 14th Amendment and was thus re-admitted to the Union). The five districts were (1) Virginia; (2) North and South Carolina; (3) Georgia, Alabama, and Florida; (4) Mississippi and Arkansas; and (5) Texas and Louisiana. Around 200,000 troops were placed in the South to enforce military rule.
• Each district in the Union was now headed by a military official empowered to remove and subsequently anoint state leaders/officials. All states were required to employ a military leader from the North (Marshall Law).
• The Reconstruction Acts of 1867 required each state had to draft a new state constitution, which would have to be approved by Congress before that state could be re-admitted to the Union.
• The Reconstruction Acts of 1867 implemented regulations regarding voter registration; all freed individuals were allowed to vote along with white persons who took extended oaths.
• The Reconstruction Acts of 1867 required each state to ratify the 14th Amendment prior to readmission into the Union.
• State constitutional conventions were required to draft new governing documents that included laws on black male suffrage and the elimination of their black codes.
• The Reconstruction Acts of 1867 disabled confederate leaders and any individual who did not pledge their allegiance to the United States from voting. (Thirty-five percent to forty-five percent of potential white voters were either excluded from voting because of the Reconstruction Acts, or failed to register or were prevented from registering).

One thing all military commanders did – because they were told to do so by Congress – was to place former slaves in positions in government. These former slaves knew nothing about government or money. They were not trained for their jobs. But they were loyal to the Republican Party. And nearly all were puppets under the control of army officials.

[It should be noted that President Andrew Johnson, who had taken over as President of the United States after Lincoln was assassinated, vetoed the Reconstruction Acts, asserting that they were unconstitutional. But Johnson’s veto was overruled by Congress. Military rule in the South would last for 10 years, until 1877, when the Republican party agreed to return Southern states to home rule in exchange for their support of the Republican candidate for president, Rutherford B. Hayes. That was the end of reconstruction].

By early 1868, the former Confederate States began to draft and submit to Congress new state constitutions. By June 9, all had new “acceptable” constitutions and thus Secretary Seward announced that all had formed republican governments and would be entitled to representation in Congress (have its representation restored) once they ratified the 14th Amendment. On these terms, Florida ratified the amendment on June 9, North Carolina on July 2, Louisiana and South Carolina on July 9, and Alabama on July 16.
These Southern ratifications seemed to give Secretary of State William Seward the required twenty-eight states necessary for the 14th Amendment to become law.

Secretary Seward had twenty-nine ratifications on file, but prior to receiving the twenty-eighth, New Jersey and Ohio had rescinded their ratification. Nevertheless, on July 20, 1868, Secretary Seward issued a proclamation declaring the 14th Amendment ratified. Congress reacted quickly to Seward’s proclamation, and on July 21, 1868, declared all twenty-nine ratifications to be valid and that the 14th Amendment was “part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State.” On July 28, Seward, issued a second proclamation, declaring the 14th Amendment had “become valid to all intents and purposes as a part of the Constitution of the United States.”

As is explained in detail in the Appendix, there were serious irregularities in the ratification of the 14th Amendment, thereby making it most likely that it was never legally passed in Congress or ratified by the States. Nevertheless, on July 28, 1868, Secretary of State William Seward proclaimed that three-fourths of the states had ratified it.

The Radical Republicans were satisfied that they had secured civil rights for blacks, but were disappointed that the amendment did not include the right to vote. That would come with the 15th Amendment, which was ratified on February 3, 1870.

II. “AND SUBJECT TO THE JURISDICTION THEREOF….”

Again, the purpose of this article is to discuss birthright citizenship, which is addressed immediately in Section 1 of the 14th Amendment —

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.”

Although the Constitution of 1787 mentioned citizens, it did not define citizenship. It was not until the 14th Amendment was added that a definition of citizenship entered the Constitution. “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.” Thus there are two components to American citizenship: birth or naturalization in the US and being subject to the jurisdiction of the US. Today, we somehow have come to believe that anyone born within the geographical limits of the US. is automatically subject to its jurisdiction; but this renders the jurisdiction clause utterly superfluous. If this had been the intention of the framers of the 14th Amendment, presumably they would have said simply that all persons born or naturalized in the U.S. are thereby citizens.

During debate over the amendment, Senator Jacob Howard attempted to assure skeptical colleagues that the language was not intended to make Indians citizens of the United States. Indians, Howard conceded, were born within the nation’s geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes and not to the Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported this view, arguing that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.”

Jurisdiction understood in terms of “allegiance,” Senator Howard explained, excludes not only Indians but “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Thus, “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the United States.
Furthermore, there has never been an explicit holding by the Supreme Court that the children of illegal aliens are automatically accorded birthright citizenship. In the case of Elk v. Wilkins (1884), the Court held that children born to Native Indian parents could not be citizens under the 14th Amendment’s citizenship clause because at the time of the birth, the allegiance of the parents belonged to the tribal nation. In the case of United States v. Wong Kim Ark (1898) the Court ruled that a child born in the U.S. of legal aliens was entitled to “birthright citizenship” under the 14th Amendment. [A more in-depth analysis of Elk and Wong is provided in the Appendix].

In a third Supreme Court case, Plyler v. Doe (1982), the Court addressed the treatment of children of illegal aliens, in the context of public education. Texas had a statue allowing the state to withhold funds to public school districts for illegal children. The provision at issue was not the Citizenship Clause but the Equal Protection Clause, but supporters of birthright citizenship for illegals will point to a footnote that the liberal judges included in the opinion. It read, in part:

“As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment “jurisdiction” can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

This footnote, however has little or no persuasive power. It provides no precedence power. It merely recited the views of a commentator and was irrelevant to the matter under decision.

Ideological liberals have recently invented a novel and wholly fabulous interpretation of this passage, maintaining that when Howard mentions that “foreigners, aliens” are not “subject to the jurisdiction” of the United States he means to include only “families of ambassadors or foreign ministers.” If so, this would be an extraordinarily loose way of speaking: Ambassadors and foreign ministers are foreigners and aliens and their designation as such would be superfluous. If we give full weight to the commas after “foreigners” and after “aliens,” this would indicate a series which might be read in this way: “foreigners, aliens, families of ambassadors, foreign ministers,” all separate classes of persons who are excluded from jurisdiction. Or it could be read in this way: “foreigners, aliens, [that is, those who belong to the] families of ambassadors or foreign ministers.” I suggest that the natural reading of the passage is the former, i.e., that the commas suggest a discrete listing of separate classes of persons excluded from jurisdiction. Of course, the debate was taken by shorthand reporters and not always checked by the speakers, so the issue cannot be settled simply on the basis of the placement of commas. In addition, Howard seemed to make a glaring omission — he failed to mention Indians. He was forced to clarify his omission when challenged by Senator James R. Doolittle of Wisconsin who queried whether the “Senator from Michigan does not intend by this amendment to include the Indians”; he thereupon proposed to add the language of the Civil Rights Act of 1866 “excluding Indians not taxed.” Howard vigorously opposed the amendment, remarking that “Indians born within the limits of the United States and who maintain their tribal relations, are not in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.” In other words, the omission of Indians from the exceptions to the jurisdiction clause was intentional. Howard clearly regarded Indians as “foreigners, aliens.” This conclusion is supported by Senator Lyman Trumbull who, as we will discuss shortly, also opposed Doolittle’s amendment. This is clear evidence, against the claims of ideological liberals who have become the proponents of open borders and are intent to replace citizens with “universal persons,” that Howard meant that foreigners and aliens included only the families of ambassadors and foreign ministers. Based on the evidence we have proffered so far, this has been exposed as an utterly preposterous idea. But there is more to come. There is no evidence anywhere in the debates to support the assertions of ideological liberals. [Edward J. Erler, “Trump’s Critics Are Wrong About the 14th Amendment and Birthright Citizenship”]

Howard had said earlier in his statement that “[t]his amendment which I have offered is simply declaratory of what I regard as the law of the land already.” The “law of the land” to which Howard referred was undoubtedly the Civil Rights Act of 1866, passed over the veto of President Andrew Johnson by a two-thirds majority in both houses less than two months prior to the May 30 debate in the Senate. The Civil Rights Act provided the first definition of citizenship after the ratification of the 13th Amendment, specifying “[t]hat all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” Thus an overwhelming majority of Congress on the eve of the debate over the meaning of the citizenship clause of section 1 of the 14th Amendment were committed to the view that foreigners — and presumably aliens — were not subject to birthright citizenship. Most of those who voted in favor of the act were still serving in Congress when the 14th Amendment was under consideration. In fact, Senator Lyman Trumbull, the author of the Civil Rights Act and chairman of the powerful Senate Judiciary Committee, was an ardent supporter of Howard’s version of the citizenship clause. “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ . . . What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else.” Not owing allegiance to anybody else, subject to the complete jurisdiction of the United States, and not subject to a foreign power. During debate over the Civil Rights Act, Senator Trumbull remarked that purpose of its citizenship clause was “to make citizens of everybody born in the United States who owe allegiance to the United States.” Read in the light of the Civil Rights Act and the authoritative statements by Senator Trumbull in the May 30 debate, can there be any real dispute that “foreigners, aliens” in Senator Howard’s opening statement does not refer to “families of ambassadors or foreign ministers” but to “foreigners, aliens” as a separate class of persons? Thus, is it not fair — and accurate — to read Howard’s statement introducing the citizenship clause to the Senate in this way:

“This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens [or] who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” [Erler, cont’d]

This use of the bracketed “[or]” is fully justified when this statement is read in the light of the Civil Rights Act, which explicitly excludes foreigners (and aliens) from birth-right citizenship, an exclusion that was authorized by an overwhelming majority of the same Congress that approved the citizenship clause of the 14th Amendment. The many statements in the debate by supporters of the citizenship clause support this conclusion. [Erler, cont’d]

III. BIRTHRIGHT CITIZENSHIP: SHOULD IT APPLY TO THE CHILDREN BORN TO ILLEGAL ALIENS?

Citizenship must be considered in the context of some absolutes, as articulated in the Constitution:

(1) A sovereign nation has the authority to control immigration and to determine and to ascertain who is entering the country, as well as to establish guidelines and laws as to WHO can enter the country. Article I, Section 8 articulates this as one of the core and primary functions of the general, or federal, government. The Immigration & Naturalization Act outlines the law related to the function of immigration and naturalization, and it also outlines where authority is delegated to the President.

(2) Government power is shared or divided, whichever way you choose to look at it, between the States and the federal government. The government was created to serve the States and to aid them in their ability to work together in the form of a Union; the government power delegated to it is clear and can be summed up in general terms: to regulate commerce, to regulate immigration and naturalization, to establish a uniform system of currency, to act as a common agent for the states on the international stage and with Indian tribes, and to establish a common army and navy to keep the states safe and secure and to make sure essential federal laws are enforced. The functions of the federal government were intended to affect the states, to assist them in their sovereign responsibilities; they were not intended to reach inside the states to regulate their people. It was to be the States themselves who would be responsibility to legislate for the benefit and service for their people. All government power not expressly delegated to the federal government by the Constitution is reserved to the States, or to the people. This is the division of power, the basis for our “federal” system, restated by the Tenth Amendment. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) Legally and historically speaking, certain functions have been reserved to the States, and these have been summed up by the term “state police powers.” A state’s police powers includes the right to legislate (regulate) “for the health, safety, welfare, and morality” of its people. Typical state functions include legislation related to education, voting, health, law enforcement, property and zoning/land use, marriage, professional certifications.
Keeping that explanation in mind, people live or reside in states, except for the District of Columbia, of course and other US territories. No one can be a United States citizen who is not first a citizen of a state and therefore a responsibility of such state. Because the federal government serves the interests of the States, if the States understand Section 1 of the 14th Amendment to require individuals to be “subject to the jurisdiction” of the United States” (ie, the special protections of citizenship offered by the US Constitution), then that is what the 14th Amendment MUST mean. If States do NOT want the magnet of automatic citizenship (and hence, chain migration) for those who come here illegally (as well as the burden on the state associated with it), then that is the lens through which the 14th Amendment must be viewed and interpreted.

(3) It is important to recognize and understand the significance of a constitution, and particularly of our Constitution. As Thomas Paine explained: “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.” (Rights of Man, 1791-1792) The key point is that the Constitution is the People’s document – the rightful and legal members of the society we call the United States of America. It embodies the People’s and the States’ intent and NOT government’s intent.

(4). Section 1 of the 14th Amendment reads: “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.” Most people understand, and even the Supreme Court has agreed in prior opinions, that non-citizens are not entitled to the protections provided by our Constitution. (They are entitled to be have their inalienable rights respected, of course, but the rights of citizenship are only available to those who can rightfully and legally be citizens).

(5) The cases regarding the citizenship of those born on US soil (ie, “birthright citizenship”) have only involved those parents who were here in the country legally. The Supreme Court has never addressed the question of birthright citizenship to the child of someone who has intentionally entered the US illegally. Some advocates for birthright citizenship for those of illegal immigrants point to the 1898 case of United States v. Wong Kim Ark, but that case merely held that a child born on US soil to parents who were lawfully, permanent (legally, “domiciled”) residents was a citizen. The parents who gave birth had a legal reason for being in the United States; they had “permission.” Because the United States has laws governing the entrance of foreigners and aliens into our country, for the purposes of the Citizenship Clause and birthright citizenship, it should be assumed that birthright citizenship applies when the mother has arrived here legally. As Mark Levin would say: “A person can’t self-emigrate.” There are laws – immigration laws.

(6) When the 14th Amendment was introduced and ratified, the country didn’t have an illegal immigration problem

(7) In no sane, rational world can an element of the Rule of Law (here the “Citizenship Clause”) be taken to reward, and even encourage, the breaking of the needful and essential laws of the United States.

(8) In two cases, the US Supreme Court has decided that the Citizenship Clause’s term “subject to the jurisdiction thereof” (ie, the jurisdiction of the United States – ie, subject to the full extend of its laws) means subject to the English common law doctrine of “allegiance.” In the more crucial case, United States v. Wong Kim Ark, the “allegiance” rationale was central to the holding.

The best way to determine what “subject to the jurisdiction thereof” was intended to mean would be to uncover evidence that state legislatures ratifying the 14th Amendment understood “subject to the jurisdiction thereof” to exclude illegal aliens (“invaders”) and their children. It is the understanding of, or meaning to, the ratifiers, moreso than the intent of the drafters, that carries most weight in constitutional questions. Commentary from the Congressional debates is certainly helpful evidence of meaning, but relying on it entirely would be foolish. It’s only half the puzzle. Commentary from the debates in the state ratifying conventions carry far more weight because that evidenced the “meeting of the minds” – the understanding – by those who agree to be bound by the amendment. In some cases, the meaning as evidenced by the Congressional record is the same as the understanding of the states; yet, sometimes the states read the amendment differently or foresee how it can be enlarged or abused and seek to limit its application in their conventions. The question is whether illegal aliens are a group of people that the US is willing to concede are entitled to any benefits or protections under our Constitution and our laws (subject to our jurisdiction”). We know illegals go through great lengths to evade our jurisdiction. We know illegals are treated differently by our laws than ordinary legal citizens (they are allowed to continue breaking our laws, for one). We know sanctuary cities provide safe zones for illegal aliens to live without legal US status (no such “safe” zones exist for legal citizens to break laws).

(9) Why should the evaders of our laws be then able to claim the protections OF our law? Why should we interpret the 14th Amendment to reward those who intentionally break and evade our laws? It wouldn’t make sense. It would fly in the face of the very meaning and intent of “sovereignty” and of our “Rule of Law.”

(10) It is not a straightforward assumption that a child of illegal aliens, if born in the United States, is automatically, at the moment of birth, subject to the jurisdiction of the United States. The criminality of the mother, or the parents, is imputed to the newborn. “But for” analysis supports this conclusion. “But for” the criminality of the parents, the baby would not have been born in the United States. Should the newborn child be considered independent of the parents? Certainly not. In no situation is a newborn considered anything other than a responsibility of the parents. It has no free will, no thought, no sense of independence.

(11) The 14th Amendment was never legally or legitimately passed. Refer to the Appendix. [See David Lawrence, “There Is No 14th Amendment!”, Sept. 27, 1957; https://www.constitution.org/14ll/no14th.htm and Douglas H. Bryant, “Unorthodox and Paradox: Revisiting the Fourteenth Amendment,” Alabama Law Review, Vol. 53, 2:555. Referenced at: https://www.law.ua.edu/pubs/lrarticles/Volume%2053/Issue%202/Bryant.pdf. Bryant’s article is included at the end of this article, in the Appendix]

IV. CONCLUSION:

Birthright citizenship is currently a policy whereby the children of illegal aliens born within the geographical limits of the U.S. have been automatically entitled to American citizenship. Trump, correctly, says it is a great magnet for illegal immigration. Today it is the magnet for illegal Hispanics. Tomorrow it may be the magnet for Islamic radicals.
Democrats, open-border activist groups, and others on the left, as well as other critics of Trump’s believe that this policy is an explicit command of the Constitution, embraced by the 14th Amendment and consistent with the British common-law system (see Appendix). As Edward Erler writes: “This is simply not true.”

 

- 2018 (Carolina Clinic) (2)

References:
Mark Levin, “Birthright Citizenship,” Mark Levin Show (October 30, 2018) – https://www.youtube.com/watch?v=vefyjFcbiNU

John Eastman, “Birthright Citizenship is Not Actually in the Constitution,” NY Times, December 22, 2015. Referenced at: https://www.nytimes.com/roomfordebate/2015/08/24/should-birthright-citizenship-be-abolished/birthright-citizenship-is-not-actually-in-the-constitution

David Lawrence, “There Is No 14th Amendment!”, U.S. News & World Report, September 27, 1957; posted in The Constitution Society. Referenced at: https://www.constitution.org/14ll/no14th.htm

Epps, Garrett (2010) “The Citizenship Clause: A “Legislative History”, American University Law Review: Vol. 60: Iss. 2, Article 2. Referenced at: http://digitalcommons.wcl.american.edu/aulr/vol60/iss2/2 OR:
https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1607&context=aulr

Rob Nateson, “An Objective Guide to Birthright Citizenship,” Tenth Amendment Center, August 31, 2015. Referenced at: https://tenthamendmentcenter.com/2015/08/31/an-objective-guide-to-birthright-citizenship/

Maggs, Gregory E., “A Critical Guide to Using the Legislative History Of The Fourteenth Amendment to Determine The Amendment’s Original Meaning (2017). A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment’s Original Meaning,” 49 Conn. L. Rev. 1069 (2017); GWU Law School Public Law Research Paper No. 2017-77; GWU Legal Studies Research Paper No. 2017-77. Referenced at: https://ssrn.com/abstract=3068014

Dred Scott v. Sandford, 60 U.S. 393 (1857), Cornell Law Library – https://www.law.cornell.edu/supremecourt/text/60/393
Dred Scott, Wikipedia – https://en.wikipedia.org/wiki/Dred_Scott

Douglas H. Bryant, “Unorthodox and Paradox: Revisiting the Fourteenth Amendment,” Alabama Law Review, Vol. 53, 2:555. Referenced at: https://www.law.ua.edu/pubs/lrarticles/Volume%2053/Issue%202/Bryant.pdf

Congressional Globe, 39th Cong., 1st Sess. (1866), 2768-2769 (Sen. Wade).

Gregory E. Maggs, “A Critical Guide to Using the Legislative History Of The Fourteenth Amendment to Determine The Amendment’s Original Meaning,” 49 Conn. L. Rev. 1069 (2017). Referenced at: https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2572&context=faculty_publications

Edward J. Erler, “Trump’s Critics Are Wrong About the 14th Amendment and Birthright Citizenship,” National Review, August 19, 2015 (but re-printed in 2018). Referenced at: https://www.nationalreview.com/2015/08/birthright-citizenship-not-mandated-by-constitution/

 

APPENDIX:

I. US CONSTITUTION, Article I, Section 8:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

II. 14th AMENDMENT, Section 1

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.

III. DRED SCOTT case – Facts of the Case and Judicial History

Dred Scott was born into slavery circa 1799 in Southampton County, Virginia. It is not clear whether Dred was his given name or a shortened form of Etheldred. In 1818, Peter Blow and his family took their six slaves to Alabama, where the family ran an unsuccessful farm in a location near Huntsville that is now occupied by Oakwood University. The Blows gave up farming in 1830 and moved to St. Louis, Missouri, where they ran a boarding house. Dred Scott was sold to Dr. John Emerson, a surgeon serving in the United States Army. After Scott learned he would be sold to Dr. Emerson and relocated to Rock Island, Illinois, he attempted to run away. His decision to do so was spurred by a distaste he had previously developed for Dr. Emerson. Scott was temporarily successful in his escape as he, much like many other runaway slaves during this time period, “never tried to distance his pursuers, but dodged around among his fellow slaves as long as possible.”

Eventually, he was captured in the “Lucas Swamps” of Missouri and taken back. Blow died in 1832, and historians debate whether Scott was sold to Emerson before or after Blow’s death. Some believe that Scott was sold in 1831, while others point to a number of slaves in Blow’s estate who were sold to Emerson after Blow’s death, including one with a name given as Sam, who may be the same person as Scott.

As an army officer, Dr. Emerson moved frequently, taking Scott with him to each new army posting. In 1836, Emerson and Scott went to Fort Armstrong, in the free state of Illinois. In 1837, Emerson took Scott to Fort Snelling, in what is now the state of Minnesota and was then in the free territory of Wisconsin. There, Scott met and married Harriet Robinson, a slave owned by Lawrence Taliaferro. The marriage was formalized in a civil ceremony presided over by Taliaferro, who was a justice of the peace. Since slave marriages had no legal sanction, supporters of Scott would later point to this ceremony as evidence that Scott was being treated as a free man. Nevertheless, Taliaferro transferred Harriet to Emerson, who treated the Scotts as his slaves.

Emerson moved to Jefferson Barracks in 1837, leaving the Scott family behind and leasing them out to other officers. In February 1838, Emerson met and married Eliza Irene Sanford at Fort Jesup in Louisiana, whereupon he sent for the Scotts to join him. While on a steamboat on the Mississippi River, between the free state of Illinois and the Iowa district of Wisconsin Territory, Harriet Scott gave birth to their first child, whom they named Eliza after their mistress. They later had a daughter, Lizzie.

The Emersons and Scotts returned to Missouri in 1840. In 1842, Emerson left the Army. After he died in the Iowa Territory in 1843, his widow Irene inherited his estate, including the Scotts. For three years after Emerson’s death, she continued to lease out the Scotts as hired slaves. In 1846, Scott attempted to purchase his and his family’s freedom, offering $300, about $8,000 in current value. However, Irene Emerson refused, prompting Scott to resort to legal recourse.

The Dred Scott case of the U.S. Supreme Court, which denied Scott his freedom by ruling that negro-slave descendants were not U.S. citizens, was the end of years of legal cases during 1846-1857, in lower federal district court and Missouri courts which had granted Dred Scott freedom for about 2 years, until overturned upon appeal.

Back in 1846, having failed to purchase his freedom, Scott filed legal suit in St. Louis Circuit Court. Scott stood on solid legal ground, because Missouri precedent dating back to 1824 had held that slaves freed through prolonged residence in a free state would remain free when taken back to Missouri. The doctrine was known as “Once free, always free”. Scott and his wife had resided for two years in free states and free territories, and his eldest daughter had been born on the Mississippi River, between a free state and a free territory.

Dred Scott was listed as the only plaintiff in the case, but his wife, Harriet, played a critical role, pushing him to pursue freedom on behalf of their family. She was a frequent churchgoer, and in St. Louis, her church pastor (a well-known abolitionist) connected the Scotts to their first lawyer. The Scott children were around the age of ten at the time the case was originally filed, which was the age when younger slaves became more valuable assets for slave owners to sell. To avoid the family from breaking up, Harriet urged Dred to take action.

The Scott v. Emerson case was tried in 1847 in the federal-state courthouse in St. Louis. Dred Scott’s lawyer was originally Francis B. Murdoch and later Charles D. Drake. Because more than a year elapsed from the time of the initial petition filing until the trial, Drake moved away from St. Louis during that time. Samuel M. Bay tried the case in court. The verdict went against Scott, as testimony that established his ownership by Mrs. Emerson was ruled to be hearsay. However, the judge called for a retrial, which was finally held in January 1850. This time, direct evidence was introduced that Emerson owned Scott, and the jury ruled in favor of Scott’s freedom.

Irene Emerson appealed the verdict. In 1852, the Missouri Supreme Court struck down the lower court ruling, arguing that growing antislavery sentiment in the free states made it no longer necessary for Missouri to defer to the laws of free states. In doing so, the court had overturned 28 years of precedent in Missouri. Justice Hamilton R. Gamble, who was later appointed governor of Missouri, sharply disagreed with the majority decision and wrote a dissenting opinion.

In 1853, Scott again sued; this time under federal law. Irene Emerson had moved to Massachusetts, and Scott had been transferred to Irene Emerson’s brother, John F. A. Sanford. Because Sanford was a citizen of New York, while Scott would be a citizen of Missouri if he were free, the Federal courts had diversity jurisdiction over the case. After losing again in federal district court, they appealed to the United States Supreme Court in Dred Scott v. Sandford. (The name is spelled “Sandford” in the court decision due to a clerical error). And well, the rest is history. The Supreme Court handed down its opinion on March 6, 1857.

IV. THE BRITISH COMMON LAW

The framers of the Constitution were well-versed in the British common law, having learned its essential principles from William Blackstone’s Commentaries on the Laws of England. As such, they knew that the very concept of citizenship was unknown in British common law. Blackstone speaks only of “birthright subjectship” or “birthright allegiance,” never using the terms “citizen” or “citizenship.” The idea of birthright subjectship, as Blackstone admitted, was derived from feudal law. It is the relation of master and servant: All who are born within the protection of the king owed perpetual allegiance as a “debt of gratitude.” According to Blackstone, this debt is “intrinsic” and “cannot be forfeited, cancelled, or altered.” Birthright subjectship under common law is the doctrine of perpetual allegiance.

America’s Founders rejected this doctrine. The Declaration of Independence, after all, solemnly proclaims that “the good People of these Colonies . . . are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved.” So, the common law — the feudal doctrine of perpetual allegiance — could not possibly serve as the ground of American citizenship. Indeed, the idea is too preposterous to entertain.

Consider as well that, in 1868, Congress passed the Expatriation Act. This permitted American citizens to renounce their allegiance and alienate their citizenship. This piece of legislation was supported by Senator Howard and other leading architects of the 14th Amendment, and characterized the right of expatriation as “a natural and inherent right of all people, indispensable to the enjoyment of the right of life, liberty and the pursuit of happiness.” Like the idea of citizenship, this right of expatriation is wholly incompatible with the common-law understanding of perpetual allegiance and subjectship. One member of the House expressed the general sense of Congress when he proclaimed: “The old feudal doctrine stated by Blackstone and adopted as part of the common law of England . . . is not only at war with the theory of our institutions, but is equally at war with every principle of justice and of sound public policy.” The notion of birthright citizenship was characterized by another member as an “indefensible doctrine of indefeasible allegiance,” a feudal doctrine wholly at odds with republican government.

Reference: Edward J. Erler, “Trump’s Critics Are Wrong About the 14th Amendment and Birthright Citizenship,” National Review, August 19, 2015 (but re-printed in 2018). Referenced at: https://www.nationalreview.com/2015/08/birthright-citizenship-not-mandated-by-constitution/

V. SUPREME COURT CASES (addressing the 1 Amendment’s “Citizenship Clause” – particularly the “subject to the jurisdiction thereof” clause)

The Supreme Court has addressed the Fourteenth Amendment’s “subject to the jurisdiction” language in two important cases. None of these cases definitively resolve our question. But they offer hints.

Elk v. Wilkins (1884) was decided before Congress extended citizenship to Indians who remained tribal members. In Elk, the Court ruled that an Indian born into a tribe was not a citizen unless naturalized under a statute or treaty. The Elk case is only weak evidence of the rule applied to foreigners. This is because the Constitution’s text and history suggest that the citizenship standards for tribal Indians and foreigners are different.

However, the Elk case does tell us that:

* “Subject to the jurisdiction” in the 14th Amendment has a specialized meaning, different from the common meaning of “within a given territory and therefore subject to a court’s order,” as, for example, appears in the 13th Amendment.
* This meaning is connected to the concept of “allegiance,” a legal term traditionally used to determine whether a person is a natural born citizen.
* For deciding whether a child born in the U.S. receives citizenship under the 14th Amendment, the relevant issue is the parents’ allegiance when the child was born. The parents’ or child’s later decisions are irrelevant, unless the United States accepts them by statute or naturalization ceremony.

Two justices dissented from the holding in Elk. They accepted the connection between “jurisdiction” and allegiance. But they argued that an Indian becomes a citizen if he changes his allegiance by abandoning his tribe and becoming a member of his state’s political community. Their version of allegiance thus depended partly on a person’s intent.

United States v. Wong Kim Ark (1898) ruled that the U.S.-born child of two legally-resident foreigners was a natural born citizen. Horace Gray, the same justice who wrote for the Court in Elk, also wrote for the Court in Wong. The result was different in Wong primarily because the Constitution implicitly made it easier for foreigners to get automatic citizenship than tribal Indians. But the underlying approach of Elk and Wong was similar in that citizenship by birth depended more on geography rather than subjective intent.

The most important lesson of Wong was this: The Constitution’s version of “allegiance” was the version we inherited from Great Britain in 1776—not versions prevailing in other countries or under international law.

As modified by Parliamentary statute, the British version of allegiance was as follows:

* Birth in a country (or on a country’s ships) normally creates a “natural allegiance” to that country.
* A child born abroad is in allegiance to a country, and is therefore natural born, only if his father is a citizen of that country and not engaged in treasonous or felonious activities. In Anglo-American law, a person’s status usually followed that of the mother, but for allegiance the rule was partus sequitur patrem.
* Foreign residents and visitors generally are in “local allegiance” to the host country, since they submit themselves to its laws and protection. Their children born in the host country are natural born citizens of that country.
* To this last rule, there are two exceptions: When the father is a foreign diplomat or a foreign invader, he has no allegiance to the host country, and his offspring are not citizens.

Two justices dissented in Wong. They argued that the British version of allegiance should not apply in America. They contended that parents in merely local allegiance should not bestow citizenship. For example, they stated that if a foreign power occupied U.S. territory, the natural allegiance of parents should pass U.S. citizenship to their children, even if those parents had a local duty to obey the conqueror.

In my view, the Wong majority was right to hold that the British version of allegiance applies to the original Constitution. But because of developments between 1789 and 1868, the dissent made a good argument that a newer, American version applied to the 14th Amendment.

Reference: Rob Nateson, “An Objective Guide to Birthright Citizenship,” Tenth Amendment Center, August 31, 2015. Referenced at: https://tenthamendmentcenter.com/2015/08/31/an-objective-guide-to-birthright-citizenship/

VI. The Validity of the 13th and 14th Amendments (from Douglas H. Bryant’s law review article “Unorthodox and Paradox: Revisiting the Fourteenth Amendment”)

When Southern senators and representatives began arriving in Washington to take their place in the Thirty-Ninth Congress, which convened on December 4, 1865, they were confronted with two opposing legal signals. The Secretary of State’s proclamation that the13th Amendment had been ratified seemed to suggest the recognition of the validity of the Southern government. Congress, however, had no intention of making such recognition. When the 39th Congress convened, Republicans refused to seat any Southern representative, and would later declare, “no legal State governments . . . exist in the rebel state.” The Southern states were refused representation in Congress throughout the entire period in which the 14th Amendment was proposed and ratified.

There can be little doubt that, were the Southern delegations admitted into the Congress, they would not have supported the 14th Amendment. Of course, this is the exact reason the Republicans excluded them. The Southern delegations, from the Republicans’ viewpoint, seemed to be the same group of rebels who had started this crisis in the first place. Southern voters elected “no fewer than nine Confederate congressmen, seven Confederate state officials, four generals, four colonels, and Confederate Vice President Alexander Stephens.” Furthermore, the abolition of slavery would do away with the three-fifths method of determining population, which would actually give the South more power in Congress than it had before the Civil War.

Regardless of this, however, if the Southern states were still in the Union, and with legitimate governments, which the ratification of the 13th Amendment suggests, then they were entitled to sixty-one representatives and twenty-two senators. The final vote on the 14th Amendment in the House was 120-32, with 32 abstentions. The tally was far greater than the necessary two-thirds. If the excluded Southern representatives’ votes were added to the negative column, however, the two-thirds would not have been achieved. Similarly, if the twenty-two Southern senators’ votes had been added negatively to the Senate tally of 33-11, with 5 abstentions, then the vote would have ended in a tie.

It is here, then; where the first problem with the proposal of the 14th Amendment arises. If the Southern governments were legitimate enough to ratify the 13th Amendment, how is it they could be denied representation in Congress? The Constitution seems to give the Republican Congress an out. It provides in Article I, Section 5 that: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business.” Thus the Constitution contemplates a legitimate congress that excludes some of its members, and allows such an exclusionary power on a majority vote.

But there is still a problem in respect to how Congress exercised this exclusionary power. The Qualification Clause gives Congress the power to serve as a “Judge” of its members’ qualifications. In this case, however, Congress made no inquiry into the qualifications of any particular Southern senators or representatives. Instead of rejecting particular men, Congress excluded all the Southern delegates, regard- less of their qualifications.

However, even a loose reading of the Qualification Clause is limited by other Constitutional provisions. Article I states that “each State shall have at Least one Representative” and Article V asserts that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” It appears, then, that the Constitution does not allow the Qualification Clause to serve as a textual warrant to defeat a state’s claim of representation. Congress would have to find some other way to deny Southern representation and still be a Constitutional “Congress” for the purpose of Article V.

The Republicans did have another justification for excluding the South from Congress. Article IV, Section 4, states that “the United States shall guarantee to every State in this Union a Republican Form of Government.” The Southern constitutions of 1865 looked very similar to their antebellum constitutions, with the exception that the 1865 documents had provisions outlawing slavery. The South’s antebellum constitutions, which protected slavery, had never been found to be un- republican and, in fact, Congress had on several occasions rejected abolitionist arguments that the Guarantee Clause barred the admission of new slave states. It seems very odd, then, to promote the idea that the Southern governments had rendered themselves unrepublican by freeing the slaves.

This argument supports Secretary of State Seward’s proclamation that recognized the South as having legitimate state governments still in the Union with the ability to ratify or reject proposed amendments. But, at the same time, there was nothing to keep the Republicans from advancing a new and revolutionary interpretation of the Guarantee Clause. There had never been a case of a state swapping a republican form of government for an unrepublican version, and thus there had never been any prior reason for Congress to question the validity of a government under the Guarantee From a modern point of view, at least, there seems to be quite a good argument for declaring Southern governments “unrepublican.”

No Southern government had granted blacks the right to vote, and some radicals in Congress argued that “republican government required not merely that blacks be free but that they be enfranchised.” This argument was hard for many Republicans to accept. For one reason, only six Northern states had granted blacks the right to vote by 1865, and during the period where Southern states were excluded, seven Northern states defeated proposals for black suffrage in popular referenda. The best they could do was to point out that in the South one- half to one-third of the eligible male voters were disenfranchised, while in the North, only a minuscule portion of male voters were excluded.

Further, if black suffrage was required, did a republican government also require women’s suffrage? All this lead many Republicans to become uneasy over the possibility that the federal government might soon have some permanent role in structuring state governments. Therefore, in preparing the document justifying Congress’s power to exclude the Southern states and still propose the 14th Amendment, the Congress, while still using the Guarantee Clause as its legal basis, looked not at the substance of the Southern constitutions, but on the presidential process of setting up the state governments.

In determining whether the Guarantee Clause may properly serve as a basis for constitutionally excluding Southern representation, it must be noted that, with two exceptions, everything in the Constitution, including the Guarantee Clause, may be changed or eliminated through amendment. The first exception expired in 1808. The clause in Article V, however, which states that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate,” may not be altered and is forever a part of the Constitution. If this clause was so important to the framers of the Constitution that they declared it unamendable, can it really be trumped by the Guarantee Clause?

Even if one agrees with the reasonable argument that the South’s governments were so unrepublican that the Guarantee Clause could allow Congress to exclude Southern representation and still propose the 14th Amendment in accordance with Article V, there still remains one unavoidable problem. For while that argument potentially saves the proposition that the 14th Amendment was constitutionally proposed, it necessarily admits that the 13th Amendment was never ratified. How could an unrepublican and thus unrecognized government’s vote count towards the ratification of the 13th Amendment?

One other matter clouds the proposal of the 14th Amendment. Even with the Southern delegations excluded, an initial poll of support for the Amendment in the Senate showed that the Senate was still one vote shy of the required two-thirds. One outspoken opponent of the Amendment was John. P. Stockton of New Jersey. Stockton had taken the oath of office and was formally seated on December 5, 1865, when the 39th Congress convened. While it only takes a majority vote to refuse to seat a congressman, the Constitution requires a two-thirds vote to expel a member who has already been seated. A motion was passed by only a bare majority in the Senate to expel Stockton. Thus, Stockton was unconstitutionally expelled. Only through this bit of chicanery did the 14th Amendment gain its requisite two-thirds majority in the Senate.

While the proposal of the Fourteenth Amendment seems trouble- some, the ratification process is even more perplexing and irregular. Once the Amendment had been “proposed” in Congress it was sent to all existing state governments, North and South. Here lies an interesting inconsistency: If there were no legitimate republican governments in the South, why did Congress send these illegitimate governments the proposed 14th Amendment? It seems the very fact that Congress sent the 14th Amendment to the South for ratification serves as a tacit endorsement that the Southern states had legitimate governments, or at least that these states were “still full-fledged members of the Union.”

Yet these very governments had been denied representation in Congress, and, as we shall see, would be abolished and the South divided into military districts after their refusal to ratify. Against this dubious background, some states began to ratify the Amendment. Twenty-eight states were needed to ratify, and rejection by ten states would prevent ratification. The first wave of states to ratify included Connecticut, New Hampshire, Tennessee, New Jersey, and Oregon. The ratifications of Tennessee and Oregon, however, are troublesome. In Tennessee, opponents of the Amendment absented themselves from the House in order to prevent a quorum. This did not stop the supporters of the Amendment, who forcibly seized two absent members and held them in a committee room. The House ignored a court order to release the two and overruled the Speaker, who ruled there was no quorum present. Thus, the Tennessee House voted for ratification amid significant controversy.

Ratification in Oregon was also irregular. The Amendment supporters had a three vote majority in the House, but two of their seats were disputed. The Amendment was quickly put to a vote and ratified by three votes. The disputed seats were later awarded to Democrats on the grounds that the Republican supporters of the Amendment were illegally elected. Therefore, Oregon would later rescind, by one vote, its ratification of the 14th Amendment.

Regardless of these controversies, by February 1, 1867, only seventeen states had ratified the 14th Amendment and eleven had rejected it, one more than the ten required to prevent ratification. The 14th Amendment appeared defeated. Congress would have to formulate a new strategy to get the Amendment ratified. This new strategy would see Congress exercise power well beyond that contemplated by Article V, and the ratification of the 14th Amendment began a course of action that cannot be squared with the text of the Constitution.

Enter – The Reconstruction Acts.

Senator Doolittle of Wisconsin, in a statement before Congress, demonstrated quite clearly the new strategy Congress would pursue to ensure the ratification of the 14th Amendment: “The people of the South have rejected the constitutional amendment, and therefore we will march upon them and force them to adopt it at the point of bayonet, and establish military power over them until they do adopt it.”

This statement exemplified how many moderate Republicans were exasperated by the South’s refusal to accept the 14th Amendment. This refusal, coupled with rising violence against blacks in the South and President Johnson’s botched plan to promote Southern re-admission, resulted in a resounding victory for Republicans in the 1866 Congressional election. The Republicans viewed this one-sided victory as a mandate in favor of the 14th Amendment, and would not allow the initial rejection by the South to curb their efforts to seek its ratification.”

Indeed, on March 2, 1867, Congress passed the first Reconstruction Act over President Johnson’s veto. The Act stated that “no legal State governments . . . exist in the rebel States,” and divided the South, with the exception of Tennessee, into military districts. The Act served to enfranchise black males and to disenfranchise large numbers of white voters. Moreover, the Act required these voters in each state to form new constitutions, to be approved by Congress, and to ratify the 14th Amendment. Even then, however, before the “State shall be declared entitled to representation in Congress,” the 14th Amendment must have “become a part of the Constitution of the United States.” The Act further proclaimed that “until the people of said rebel States shall be by law admitted to representation in the Congress of the United States, any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same.”

Yale University scholar, Bruce Ackerman, noted that, “Up until now, it was possible to drape a legal fig leaf over each Congressional action. But at this point, we are in the presence of naked violations of Article Five.”‘ University of Alabama history professor, Forrest McDonald, has stated that, “the act flew in the face of the Constitution in a large variety of ways.” Thus, as these commentators note, there is simply no way to fit the Reconstruction Acts within the bounds of the Constitution, yet the 14th Amendment owes its existence in the Constitution to this troublesome legislation.

Additionally, the Reconstruction Act seemed to run afoul of a recent decision (1866) of the Supreme Court. In Ex parte Milligan,” the Court held that military trials of civilians in times of peace and outside of war zones were un-constitutional, and stated that “martial rule can never exist where the courts are open.” Since the Civil War had been over for almost two years prior to the passage of the Reconstruction Acts and because Southern governments and courts had been operating for some time, the Reconstruction Act seemed to run counter to the Court’s ruling in Milligan. Further, the Court spoke of martial law in strong terms:

“If the country is subdivided into military departments for mere convenience . . . republican government is a failure, and there is an end of liberty regulated by law, martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the ‘military independent of and superior to the civil power.”

The Republicans in Congress denounced the decision as a “piece of judicial impertinence which we are not bound to respect.” Others said that the War was not over until Congress said so, and in the meantime the South was a war zone in which martial law could be imposed. At any rate, Congress, as we shall further see, had no intention of letting the Supreme Court get in its way. The Reconstruction Act also deprived most white voters in the South of their political rights, without due process of law, on a whole-sale basis. President Johnson noted this in his lengthy veto message:

“Here is a bill of attainder against 9,000,000 people at once. It is based upon an accusation so vague as to be scarcely intelligible and found to be true upon no credible evidence. Not one of the 9,000,000 was heard in his own defense. The representatives of the doomed parties were excluded from all participation in the trial. The conviction is to be followed by the most ignominious punishment ever inflicted on large masses of men. It disfranchises them by hundreds of thousands and degrades them all, even those who are admitted to be guiltless, from the rank of freemen to the condition of slaves.”

Congress quickly brushed aside President Johnson’s stinging veto message.

More importantly, in holding that no legitimate republican state governments existed in the South, with the exception of Tennessee, Congress had trapped itself in an interesting inconsistency. These same governments had been called upon to ratify the 13th Amendment. Five Southern states had ratified the 13th Amendment and their votes had been counted towards the required two-thirds majority. How could these governments have been legitimate enough to ratify the 13th Amendment, but not legitimate when they rejected the 14th? Once again, then, we are faced with the “13th -14th Amendment paradox,”‘ which plagues the 14th Amendment from proposal to ratification. For, if Congress was right, and no legitimate state governments actually existed in the South, then Secretary of State Seward7s proclamation that the 13th Amendment was ratified is also illegitimate. Therefore the 13th Amendment has not really been ratified, and slavery has not constitutionally been abolished. But if Congress was wrong, and the Southern governments were legitimate, then the 14th Amendment is dead at this point. Therefore the Reconstruction Act is unconstitutional because the South’s legitimate governments had been denied representation in Congress during the Amendment’s proposal and had rejected the proposed amendment once submitted to them.

Placing aside this “13th-14th Amendment Paradox” for the moment, if possible, there are further problems and inconsistencies on the face of the Reconstruction Act. The coercive nature of the Act itself is well beyond anything contemplated by Article V. Article V gives Congress the power to propose amendments and allows them to determine whether ratification will be by state legislatures or state conventions. Through the Reconstruction Act, however, Congress is attempting to exert a power to override a veto by the states of a proposed amendment. The Southern governments must have been viewed as legitimate because they were allowed to ratify the 13th Amendment and were initially sent the 14th Amendment. But now, through the Reconstruction Act, Congress is saying that their refusal to accept the Amendment has deprived them of all political power in the councils of the nation. Further, Congress is also telling the South that if they ever want that power back, the 14th Amendment must become part of the Constitution, and until it does, the South will be governed by the Union army. This is entirely inconsistent with the limited power granted to Congress in Article V. Surely, the founding fathers never contemplated that an amendment to the Constitution could be lawfully compelled “at the point of the bayonet,” or that a state could be placed under the duress of continued and compelling military force to achieve the ratification of a desired amendment.

Even placing aside the coercive nature of the Reconstruction Act, there is a further unavoidable problem with the Act’s inconsistent internal logic. The Act stated that no legal republican state governments existed in the South. According to the Act, in order for Congress to legally recognize Southern governments, the 14th Amendment must have been ratified by the Southern states, and must have become part of the Constitution. The key inconsistency is that the Amendment must have been ratified by the provisional government of a Southern state before that government was legally recognized. Yet, what good is ratification by a government that is not legally recognized or entitled to representation in Congress? And if ratification by a congressionally unrecognized state government is allowed, why can’t an unrecognized state government reject an amendment?

With this problem duly noted, we may now further question the ratification of the 14th Amendment by Tennessee. Tennessee had initially ratified the 14th Amendment when other Southern governments had rejected it. Upon ratification of the 14th Amendment by Tennessee, Congress, on July 24, 1866, declared Tennessee restored to the Union. But Tennessee’s government had been set up under the direction of the Chief Executive, as had all the other Southern governments. Tennessee’s government was no different from the other Southern governments, with the exception that it had enough votes to ratify the 14th Amendment. So, if Tennessee’s government was legitimate enough to accept the 14th Amendment, why were the other Southern governments illegitimate when they refused? But as Congress’s proclamation points out, Tennessee was declared restored to the Union because it had ratified the 14th Amendment. Again, this raises the question, what good is a ratification from a state whose government is not legally recognized?
This, however, brings us back to a now familiar problem. If the Southern governments were legitimate enough to ratify the 13th Amendment, and Tennessee’s government was legitimate enough to ratify the 14th, then the Reconstruction Acts cannot be constitutional. For Congress had no more power in 1867 to abolish a valid state government, than it would today to put New England under military rule for refusing to ratify a proposed anti-abortion amendment.

Both North and South realized the Reconstruction Acts stood on unstable constitutional grounds, and that the Supreme Court would likely have the final say. In fact, after the Milligan decision, Congress had introduced a flurry of bills and constitutional amendments seeking to limit the power of the Supreme Court. The House passed a bill which would have required a two-thirds Court majority to overturn legislation deemed unconstitutional, but the bill did not make it out of the Senate. Some congressional Republicans even sought to have the Supreme Court abolished. These Republican attacks on the Supreme Court may have convinced some justices “that discretion was the better part of valor,”‘ because the Court would dismiss two suits by state officials in the South to enjoin the enforcement of the Reconstruction Acts.

In Mississippi v. Johnson (1866), the Supreme Court refused to issue an injunction against enforcement of the Reconstruction Acts by the President. The Court noted that if it did grant the injunction against the President on the grounds of unconstitutionality, the President might very well be impeached by the House for complying with the Court order and refusing to enforce the Act.la The Court cited this “collision . . . between the executive and legislative departments” in refusing to grant the injunction, and therefore dodged the question of the Reconstruction Acts’ constitutionality.

In Georgia v. Stanton (1867), the Supreme Court dismissed an action by the State of Georgia to restrain the Secretary of War and other executive officials from enforcing the Reconstruction The Court noted that the Acts’ execution would “annul, and totally abolish the existing State government of Georgia, and establish another and different one in its place; in other words, would overthrow and destroy the corporate existence of the State.” However, the Court held that this was a political question and was not justiciable. Again the Supreme Court had dodged the issue of the constitutionality of the Reconstruction Acts. The Court did hint, however, that if an action was brought relating to the rights of “persons or property,” it would hear the matter.

The Supreme Court’s language in Stanton left the door open for one more challenge to the Constitutionality of the Reconstruction Acts in Ex parte McCardle. McCardle, the editor of the Vicksburg Times, was arrested by military authorities in Mississippi for publishing an editorial denouncing the constitutionality of the Reconstruction Acts. He was charged with impeding reconstruction; inciting insurrection, disorder, and violence; libel; and disturbance of the peace, and was to be tried before a military court. McCardle filed for a writ of habeas corpus on the ground that the Reconstruction Act was unconstitutional. The district court refused to grant this petition for a writ of habeas corpus and McCardle appealed to the Supreme Court. The Supreme Court agreed to hear the case and denied the government’s motion to dismiss for lack of jurisdiction.

After the Court denied the government’s motion to dismiss, word soon reached congressional leaders that the Supreme Court would be forced to declare the Reconstruction Acts unconstitutional. The Congressional response was quick. Republicans passed a bill that repealed the Habeas Corpus Act of 1867, the act under which McCardle had appealed, thereby removing the Supreme Court’s jurisdiction in the case. Congress noted that the purpose of this bill was to prevent the Supreme Court from passing on the validity of the Reconstruction Acts. The case had already been argued about two weeks before Congress passed its bill striping the Supreme Court of its jurisdiction, giving the Court time to issue a decision. The Court, however, backed down from congressional authority, fearing that if they ruled on the Reconstruction Acts, the Republicans in Congress might retaliate by inflicting even more damage upon the Court’s institutional independence.

Despite a strong dissent by Justice Grier, the Court decided to wait for the bill stripping its jurisdiction to become law. The Court dismissed McCardle’s case for want of jurisdiction and refused to find the jurisdiction stripping legislation unconstitutional. The Court had again, though just barely and for the last time, dodged the question of the Reconstruction Act’s constitutionality.

While the constitutionality of the Reconstruction Acts was being challenged in the Supreme Court, military officials, and twenty thousand federal troops, had begun registering voters in the South in order for new Southern governments to be organized. After the registration of voters was completed in September 1867, black voters made up a majority of voters in five of the ten unreconstructed states. Thirty-five percent to forty-five percent of potential white voters were either excluded from voting because of the Reconstruction Acts, or failed to register. Southerners still made some attempts to resist the forced creation of new governments. In Alabama, for example, most voters stayed away from the polls to prevent the new constitution from being approved by the required majority of registered voters. This tactic was tried in other Southern states as well, but Congress responded by repealing the “majority-of-the-voters” requirement, and allowed for a majority of the votes cast to enable the new constitutions. Thus, all the unreconstructed states “approved” new constitutions, and the new governments began ratifying the 14th Amendment.

Arkansas was the first of the unreconstructed Southern states to act. For the state’s new constitution to be legal, it required congressional approval, but it’s new legislature informally convened and approved the 14th Amendment on April 6, 1868. The Congress voted to admit Arkansas to representation in Congress on June 22, 1868. It should be pointed out, then, that Arkansas ratified the 14th Amendment, even though it still had “no legal state governments” until June.

Florida was the next of the unreconstructed states to act. Florida, in May of 1868, had approved its new constitution that had been drafted by a convention presided over by United States Army Colonel John Sprague in full military uniform. Florida ratified the 14th Amendment on June 9, 1868. While Congress debated the readmission of Florida, it was pointed out that the text of the Amendment ratified by the state contained numerous errors and variations. Some senators, therefore, argued that Florida had not properly adopted the Amendment. Yet, after the ratifications of New York, Pennsylvania, Wisconsin, and Michigan were examined and found to have similar errors, some of them substantive, Congress decided that ratification in any form would suffice. Florida was therefore readmitted as a legal government. However, like Arkansas, Florida had ratified the 14th Amendment before Congress declared it a legal government.

After Florida ratified the Amendment, Congress changed the rules slightly. It declared that all the Southern states had, by adopting new constitutions, formed republican governments, and would be entitled to representation once they ratified the 14th Amendment. Congress, then, would no longer have to consider representation of an unreconstructed state once it ratified the Amendment. A state would automatically have its representation restored once it ratified the 14th Amendment. On these terms, North Carolina ratified the Amendment on July 2, 1868, Louisiana and South Carolina on July 9, 1868, and Alabama on July 16, 1868. But again, regardless of the coercive factor that ratification was still a condition precedent to admission in Congress, the governments that ratified the Amendment still cannot be considered legal state governments if they were not entitled to representation in Congress until after they ratified it.

These Southern ratifications seemed to give Secretary of State William Seward the required twenty-eight states necessary for the 14th Amendment to become law.

Secretary Seward had twenty-nine ratifications on file, but prior to receiving the twenty-eighth, New Jersey and Ohio had rescinded their ratification. Nevertheless, on July 20, 1868, Secretary Seward issued a proclamation declaring the 14th Amendment ratified. However, as one commentator has pointed out, “it is hard to ignore the tell-tale signs of irregularity that peer out from the fifteenth volume of the Statutes at Large.” Seward’s proclamation shows he obviously had doubts as to the validity of all of the listed twenty-nine ratifications. Clearly, on Seward’s mind was the constitutionality of using military force to set up new Southern governments as a means securing ratification. Seward’s proclamation explained that the Amendment had “also been ratified by newly constituted and newly established bodies avowing themselves to be and acting as the legislatures, respectively, of the States of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama.” As to the rescissions by Ohio and New Jersey, Seward noted that it was “a matter of doubt and uncertainty whether such resolutions” were valid. Seward further concluded his proclamation conditionally, stating, “if the resolutions of the legislatures of Ohio and New Jersey ratifying the aforesaid Amendment are to be deemed as remaining of full force and effect . . . then the aforesaid amendment has been ratified.”

Congress reacted quickly to Seward’s proclamation, and on July 21, 1868, declared all twenty-nine ratifications to be valid and that the 14th Amendment was “part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State.” On July 28, Seward, issued a second proclamation in conformance with the congressional resolution, and declared the 14th Amendment had “become valid to all intents and purposes as a part of the Constitution of the United States.”

The 14th Amendment has been considered a part of the Constitution ever since. Yet, 130 years after Secretary of State Seward’s proclamation, no one has answered the question of how the original reconstruction Southern governments were to be counted when they said “yes” to the 13th Amendment, but when they said “no” to the 14th Amendment, Congress had a right to destroy these governments, and then keep the new governments in the cold until they said “yes”?

Should we just go ahead and assume the validity of the 14th Amendment?

It is possible that a person, after reading the story of the ratification of the 14th Amendment, might say something like: “This is very interesting, but the 14th Amendment has been accepted as a part of the Constitution for over 130 years and we must assume its validity.” While this seems like a reasonable enough statement, there are certain unfavorable consequences forced upon one who assumes it is valid. These consequences are set out in the following scenarios from which one is required to choose from if he assumes the constitutionality of the 14th Amendment.

Scenario A: The “Thirteenth-Fourteenth Amendment Paradox.” One possibility may be to assume that the Southern governments were so “unrepublican” that they could constitutionally be excluded from Congress and deprived of their right to participate in the proposal of the Amendment. It must further be assumed that the Reconstruction Acts were constitutional and that Congress had the power to set up, through military occupation, republican governments in the South and compel ratification by these new governments and that these ratifications were valid even before Congress had declared these new governments “legal.” These assumptions save the 14th Amendment, but in a way that necessarily invalidates the 13th Amendment. For if the Southern governments were unconstitutionally unrepublican, there is no way to justify counting their ratifications towards the 13th Amendment. One is thereby left with the unfortunate choice between the validity of the 14th Amendment or the abolition of slavery.

Scenario B: Constitutional Secession. Another possibility would be to assume that a state may somehow constitutionally leave, or be removed from, the Union through some method such as an ordinance of secession or by state suicide. With this assumption, one could conclude that the Southern states were not entitled to representation in Congress and were not to be counted in determining whether three-fourths of the states had ratified an amendment. Therefore, if one also assumes that the resolutions by New Jersey, Ohio, and Oregon rescinding their ratifications were invalid, then the 14th Amendment can be saved. One who chooses to follow this scenario must not only repudiate the principle of an indissoluble Union, but also several Supreme Court decisions holding that the South had never left the Union as well as actions by the legislative and executive branches that asserted the South had never left the Union. Even if one decides that recognizing some form of secession or method for dissolution of the Union is not so bad when compared to invalidation of the 14th Amendment, this scenario is still problematic simply because it was not the method followed by Congress.

Scenario C: Ratification Outside Article V. A final method which might potentially save the 14th Amendment would be to assume that the Constitution can legally be ratified outside of the method set out in Article V. For example, one might argue that the North had a right to force the Southern governments to accept the 14th Amendment because it had the South within “the grasp of war.” This “grasp of war” theory would save both the 13th and 14th Amendments without recognizing any form of secession by assuming that these amendments were not made part of our Constitution through Article V ratification, but by Gettysburg and Appomattox. While this would save the 14th Amendment, “grasp of war” is an extremely undesirable justification for the Amendment, because while all amendments other than the Reconstruction amendments were products of the constitutional will of the American people, the 14th Amendment would then find its justification solely by the guns of the Union Army. Equally troubling is that, if the “grasp of war” theory is assumed to be a constitutional method for ratification, what other extra-Article V amendment methods might be found to exist?

The most disturbing problem arising out of the 14th Amendment ratification story is the precedent for constitutional amendment it may have set. For one to assume the constitutionality of the Amendment, they must accept its method of proposal and ratification as constitutional. Therefore, one who accepts the constitutionality of the 14th Amendment must also accept the premise that, at least in certain circumstances, Congress may deny states their representation in Congress in order to compel ratification of a desired amendment. This cannot be right, but the dilemma is heightened by the recognition that the 14th Amendment is a cornerstone of federal jurisprudence.

There is simply no acceptable outcome if we are forced to choose between accepting a doctrine of congressional coercion or the 14th Amendment. The only answer, besides ignoring the question, is to re- propose the 14th Amendment.

It seems quite clear that the 14th Amendment was not ratified, if proposed, even loosely within the text of Article V of the Constitution. Article V does not give Congress the power to deny a state representation in Congress without its consent. In fact, it prohibits such conduct. Nor does Article V give Congress the power to abolish a state government when it refuses to ratify a proposed amendment. And certainly, Article V does not allow Congress to deny a state its representation until it ratifies a desired amendment.

Furthermore, Article V is the only way the Constitution can be amended. The Supreme Court in Hawke v. Smith (1920) has stated:

Article V is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the legislatures of three-fourths of the States, or conventions in a like number of States. The Framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.

So, if the Constitution can only be amended through Article V, and the 14th Amendment was not ratified properly under that Article, what is its status? It seems as though this question can only be answered in one way. However, having the 14th Amendment suddenly declared invalid would be disastrous. There would be a long list of cases, including many landmark cases such as Brown v. Board of Education, Roe v. Wade, all the religion and prayer cases, and McDonald v. Chicago, which would be invalidated. The question is one for the Supreme Court. Yet, in Coleman v. Miller (1939), the Court discussed the ratification of the 14th Amendment for the first, and likely the last time.

The Court did not discuss whether the ratification had conformed to Article V. It said only that:

While there were special circumstances, because of the action of the Congress in relation to the governments of the rejecting States (North Carolina, South Carolina and Georgia), these circumstances were not recited in proclaiming ratification and the previous action taken in these States was set forth in the proclamation as actual previous rejections by the respective legislatures. This decision by the political departments of the Government as to the validity of the adoption of the 14th Amendment has been accepted. We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the Amendment.

So, while the Court seemed to recognize that there were problems with the 14th Amendment’s ratification, it decided that Article V questions are non-justiciable political questions. It seems that whenever the Congress and the Secretary of State proclaim an amendment to be ratified, that proclamation is binding on the Court and “would not be subject to review by the courts.” While the wisdom of applying this political question doctrine to declared amendments is questionable, the Court has been true to its word in Coleman, as it has not decided a single Article V case since. Still, the ratification process of the 14th Amendment has never been reviewed by the Supreme Court and, in light of Bush v. Gore (2000), the political question doctrine may have lost favor with the Court. So, while a federal court would likely be unreceptive to an argument claiming the 14th Amendment invalid, it would make for an interesting affirmative defense. The 14th Amendment will, undoubtedly, remain a part of the Constitution, but as one commentator has stated, “no one ever became rich by predicting what the Supreme Court would do from one generation to another.” We should at least be aware of its irregular adoption and guard against such constitutional disrespect in the future. Congress should also seriously consider re- proposing the Amendment if it is concerned with preserving Equal Protection and Due Process for future generations.

The ratification story of the 14th Amendment, which shows the irregular and likely unconstitutional process by which it has been declared part of our Constitution, demonstrates that a major cornerstone of constitutional law is placed on a shaky and uneasy foundation. Un- fortunately, although one may wish to remedy the constitutional wrongs committed during its ratification, it is apparent that this cornerstone amendment should be left in place, lest the entire house of higher law as we know it should come toppling down. It is not too late, however, to shore up the foundation of constitutional jurisprudence. Congress and the states should re-propose and ratify the 14th Amendment, and thereby ensure the principles of equal protection and due process which the Amendment guarantees.

Reference: Douglas H. Bryant, “Unorthodox and Paradox: Revisiting the Fourteenth Amendment,” Alabama Law Review, Vol. 53, 2:555. Referenced at: https://www.law.ua.edu/pubs/lrarticles/Volume%2053/Issue%202/Bryant.pdf

Our Modern-Day Interposer, Judge Roy Moore

JUDGE ROY MOORE - with his statue

by Diane Rufino, January 25, 2018

I just wrote an article explaining the doctrine of Interposition and how vital a remedy it is against federal tyranny. (“Interposition: The Duty to Say “NO!”). In that article, I wrote: “Our challenge is to stand up as a people, and as individual States, to the government officials, the government bodies, and yes, even federal judges who are violating, ignoring, eroding, or otherwise re-interpreting the Constitution our Bill of Rights. Each unconstitutional act usurps the powers delegated or reserved to the People and the States. Nature’s Law supersedes man’s law. Every failure to resist the tyranny posed by an unconstitutional act tightens the noose around freedom’s neck.”

Explaining Interposition, I wrote

Since the Tenth Amendment cannot enforce itself, interposition is one of the doctrines that allows the States and the People to stand up for the rights that are reserved to them. Right now, the federal government has a monopoly over the meaning and scope of its powers. Congress makes the laws, the president signs the laws and enforces then, and the courts review them for constitutionality. It wasn’t always this way. The federal courts were originally only supposed to render an “opinion” to the other branches. They were to take that opinion under advisement and amend the particular law or alter their conduct. The “check” that the “opinion” offered was that it was public; once the States found out the opinion, as sovereigns and as the co-parties to the compact known as the US Constitution, they always had the option to nullify and refuse to enforce a law or policy that the court deemed as unconstitutional. But the judicial branch made sure that its power was much more substantial than rendering a mere opinion. The federal monopoly was established when Chief Justice John Marshall handed down the Marbury v. Madison opinion in 1803. Essentially the decision asserts that the Supreme Court is the tribunal tasked with interpreting the Constitution and as such, it’s “opinions” are not really “opinions” at all but binding decisions. Whatever the men in robes decide is the meaning and the intent of the Constitution IS the meaning and intent and its decisions are final and binding.

But rights and liberties are never secure when men and women have the power to interpret while also being motivated by political opinions, personal passions, etc. The Tenth Amendment MUST not be left to the federal government monopoly to ignore or re-interpret as it sees fit.

The remedy always available to those who hold the reserved powers is interposition – to recognize that certain acts are unconstitutional and exceed delegated powers (and hence are null and void and legally unenforceable) and then to take the necessary steps to make sure that they are NOT enforced. To allow them to be enforced is allowing government usurpation.

We saw an act of Interposition in 2010 or so when the state of Arizona took on the federal government. The Arizona state government was fed up with the fact that the Obama administration refused to enforce immigration laws. The State was being overly burdened by illegal immigration and without enforcement of federal laws or even an immigration policy, the problem was increasingly getting worse. So, the Arizona legislature passed a law giving its state law enforcement powers to determine which immigrants were undocumented and to require employers to do the same in the hiring process (e-verify). Without the ability to work in the state or to be free of law enforcement checks, perhaps the immigrants would leave. The Arizona legislature and Governor Jan Brewer interposed for the benefit of their citizens and for the proper functioning of the State. Quickly, however, Obama sued the State. How dare it interpose.

And then we saw the case of Judge Roy Moore in Arkansas. He dared to stand up to judicial tyranny.

It’s been a sad several years in America. Several decades actually. For 8 years, we had a president whose approach to government was that if he didn’t get what he wanted, “I’ve got a pen and I’ve got a phone.” When he didn’t get amnesty for illegals (The Dream Act), he acted by Executive Order to establish the DACA program (which is temporary amnesty for illegals, ages 18 and younger, brought to the US by their parents). It was UNCONSTITUTIONAL. He created a law which is the sole domain of the legislative branch. In fact, his action went directly against the actions of the legislature since Congress would not pass the Dream Act. He misled – no, LIED – to the American people with the Affordable Care Act, which eventually became law as a new tax. The law is UNCONSTIUTTIONAL as exceeding the bounds of the taxing power (the mandate is a “punishment” for not signing up for Obamacare and that is one of the classifications that the taxing power is not allowed to be used for). He refused to allow the federal government to enforce DOMA (Defense of Marriage Act), claiming that marriage is between any two consenting people, even same-sex. The Supreme Court would rule that the States have no right or power to define marriage narrowly so as to only be between a man and a woman. In other words, the Court handed down an UNCONSTITUTIONAL opinion by usurping a traditional power reserved to the States by the Tenth Amendment. Similarly, Obama threatened and attempted to coerce the states of North Carolina over bathrooms according to biological gender. He said that civil rights law would be “interpreted” (even though there was no court history to back him up and the law includes clear definitions) to include protection for transgenders in the term “it is unlawful to discriminate against an individual because of his or her sex.”

The Civil Rights Act of 1964 was enacted “To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the attorney General to institute suits to protect constitutional rights in public facilities and public education, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity (EEOC), and for other purposes.” (intro of the bill). The Act provides that “It is unlawful to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin.”

In the definition section of the Act, it provides: “(k) The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions…”

Obama used the IRS to subdue the voice of Tea Party and other conservative groups by not allowing them to form into organizations and therefore participate in elections, he obstructed justice on too many matters to list here, and colluded with the DNC and Hillary Clinton and her campaign to use the full powers of the federal government to prevent Donald Trump from becoming president. His disdain for the US Constitution, for the Rule of Law, and for the rightful role of government was so palpable that the Tea Party arose. In fact, judging by the turn-out and the energy in 2016 and the election of Trump, it is abundantly clear that the American people are, at heart, Tea Partiers. They want limited government. But yet the media and the liberal left (the no-brainers) are still willing to give Obama a pass on all his acts of absolute tyranny.

We have Senator Chuck Schumer who intentionally shut down the government over a matter that nothing to do with the government funding bill and over a class of individuals who have no legal recognition in this country nor claim to protection under any of our laws. We have Nancy Pelosi who admits not only that she shouldn’t have to actually read a bill before signing it but that the Constitution means nothing to her. As if ignorance wasn’t her only defining characteristic, she also had the absolute gall to refer to a major tax cut for middle class Americans (one that has real meaning and real tangible benefits to most Americans) as “crumbs” (because, after all, we aren’t as wealthy as her – ie, we all didn’t have the opportunity to enrich ourselves while serving in office, AND we don’t have a government slush fund to cover our expenses) and to take all House Democrats out to a swanky Italian feast to celebrate the fact that they had just stopped paying our men and women serving in uniform, including at the dangerous Mexican border. And we have Rep. Maxine Waters who uses her office NOT to serve in the capacity she was elected to but rather to cry “racism” at every chance she gets, to continually label the president as racist, incompetent, rude, etc and to try to have him impeached on these unimpeachable claims. We have other representatives also so colossally incompetent, useless, and reckless.

But Judge Moore, a man who singlehandedly stood up to judicial tyranny and tried to set the Constitution right, is vilified. A man like him was not elected to DC. Democrats want Obama back, and in fact, they wanted someone worse (more corrupt) – Hillary Clinton. But Judge Moore was not suitable.

Just how did Judge Roy Moore interpose? In 1868, the Fourteenth Amendment was added to the US Constitution. I did not write “In 1868, the Fourteenth Amendment was passed” because it never did legally pass. And it wasn’t an amendment as much as it was “punishment” for the Southern states. The North forced it on the subjugated southern states. In fact, the amendment is not legitimate at all under the required process outlined in Article V. But for a moment, let’s suppose that it was. The amendment was intended as a codification of the Civil Rights Law at the time, the Civil Rights Act of 1866.

The Civil Rights Act of 1866, enacted on April 9, 1866, was the first federal law to define citizenship and affirm that all citizens are equally protected by the law. It was mainly intended to protect the civil rights of persons of African descent born in or brought to the U.S., in the wake of the American Civil War. In other words, it was intended to over-ride the portion of the Dred Scott decision of 1857 that said that persons of African descent (all blacks) were never intended to be citizens and therefore could not be so, and as such were not entitled to the protections of the US Constitution. The Civil Rights Act was actually enacted by Congress in 1865 but was vetoed by President Andrew Johnson. In April 1866, Congress again passed the bill as a companion to, and in support of, the Thirteenth Amendment. Although President Johnson again vetoed it, a two-thirds majority in each chamber overcame the veto and the bill became law. Rep. John Bingham (R-OH) and some other congressmen argued that Congress did not yet have sufficient constitutional power to enact this law and then the idea came to memorialize the Civil Rights Act in constitutional amendment form and force the former confederate states to ratify it (as a condition to being re-admitted to the Union. Note, they had been admitted to the Union implicitly by including them in the ratification process for the Thirteenth Amendment. But then they were “kicked out” again for the sole purpose of conditioning their re- re-entry on ratification of the Fourteenth Amendment !!]

So, assume the Fourteenth Amendment’s purpose (stated purpose in fact) was to provide citizenship for the newly-freed slaves and to recognize that as citizens, they also have the same rights and privileges as every other US citizen and they are entitled to equal protection under the laws. When the slaves were freed, the North wanted to make sure that the South couldn’t tacitly continue to treat them as slaves by denying them the rights and privileges necessary to assume an equal and meaningful place in society. Secretly, the North just wanted to make sure the freed slaves stayed in the South. The Supreme Court, however, found a way to use this amendment to usurp the original meaning of the Bill of Rights and to strip the States of their powers. Beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to “incorporate” most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

Prior to the ratification of the Fourteenth Amendment and the development of the “Incorporation doctrine,” the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendments did not apply to state governments. [See Richard Aynes’ law journal article on the meaning and intent of the Fourteenth Amendment]. But the temptation to strip the States of its ability to remain free from the constraints of the Bill of Rights was too great. And little by little, areas historically reserved to the States to regulate have been taken away by nine men in black robes.

For example, with respect to the First Amendment: The guarantee against an Establishment of Religion was incorporated against the States in 1947 (Everson v. Board of Education – the infamous “Wall of Separation” case); the guarantee of one’s Free Exercise of Religion was incorporated against the States in 1940 (Cantwell v. Connecticut); the guarantee of Freedom of Speech was incorporated in 1925 (Gitlow v. New York); the guarantee of Freedom of the Press was incorporated in 1931 (Near v. Minnesota); the guarantee of Freedom of Assembly was incorporated in 1937 (DeJonge v. Oregon); and the guarantee of the Right to Petition for Redress of Grievances was incorporated against the States in 1963 (Edwards v. South Carolina). Now, most Americans might think that it’s a good thing to guarantee that the States can’t infringe these essential liberty rights, but history has shown that the Supreme Court has actually stripped individuals of their rights to self-governance in their States and localities by the Incorporation Doctrine. The federal courts are using it to establish a one-size fits all model across the United States. Each state will feel, and BE the same. There used to be the notion that each state had their own “character,” their own social environment and their conditions of living, as determined by those who live in that “backyard.” And those who don’t like the character or condition of their “backyard” are free to move to a state that is more to their liking. State borders are supposed to mean more than mere physical boundaries and confines of legal jurisdiction.

Alabama Supreme Court Judge Roy Moore understood the unconstitutionality of the Incorporation Doctrine. He understood the decisions amounted to judicial over-reach and judicial tyranny. And so, in 2001, when the first of two lawsuits was brought demanding that he take down the a 5,280-pound (2,400 kg) block of granite with the Ten Commandments engraved on it, which was placed in front of the Alabama state courthouse, he stood his ground. In the case Glassroth v. Moore (Fed District Court, 2003) [and the companion case Maddox and Howard v. Moore], the court agreed with the plaintiffs, lawyers who were concerned that their clients might feel they would not be treated fairly if they didn’t agree with the Judeo-Christian tenets, and held that the statue is an impermissible establishment of religion, violates the First Amendment as incorporated against the state of Alabama by the Fourteenth Amendment, and therefore had to be removed. Judge Moore refused. He appealed to the Federal Court of Appeals for the 11th Circuit but the panel of judges affirmed the lower court decision. Again Judge Moore refused to take the statue down. If the federal government wanted to erase any connection to the Ten Commandments at any federal court because God forbid it might convince someone that the government is establishing a national religion, then that was within the government’s right. But according to Moore, if the state of Alabama wanted to have the Ten Commandments at their courthouse to remind them “of a higher law,” to remind them of the moral foundation of law, and to also remind them of the provision including in the very preamble to the state constitution “that in order to establish justice we must invoke ‘the favor and guidance of almighty God,’” it had the right to do so under the rightful interpretation of the US Constitution and Bill of Rights, including the Fourteenth Amendment.

The other judges of the Alabama Supreme Court finally stepped in and had the statue taken away from the courthouse, and Judge Moore was removed from office for his refusal to comply with the federal court decision.

Indeed, as Mike Scruggs put it: “A great opportunity to insist on both States’ Rights and Religious Liberties was forfeited when the Governor and most of the Alabama Supreme Court failed to back Judge Moore in his resistance to federal judicial tyranny.”

All tyranny needs is people to do nothing.

Our government in Washington DC is full of people who don’t know how to say NO or even how to conduct themselves as government officials in accordance with the rightful authority given to them. Day upon day, we allow government tyranny, and especially, judicial tyranny. Do we even realize how many of our rights have been burdened over the years? We say we are “Free” but freedom implies the ability to exercise our God-given rights without condition and without government intervention or regulation. How “freely” are we really able to exercise our rights? Think on that as you self-censor, as you hide the cross around your neck in certain situations, as you decide not to put a bumper sticker on your car, as you decide not to say a prayer before your meal because someone might see you doing so, as you watch 1/3 of your hard-earned money get siphoned off by the government to spend predominantly on items that are unconstitutional, as you break into a sweat when April 15 comes around and you question whether you have saved all your receipts and if you have listed everything on your taxes so that you aren’t audited, and as you lose your job because someone in some cubicle somewhere was offended by something you said, posted in your private cubicle, wrote on FB, or something you wore around your neck or embossed on a tote bag.

Judge Moore may have been an unfavorable candidate, but it is most likely that the allegations against him were fabricated. He may be a flawed individual, but he is the RIGHT kind of individual for government. He is an unashamed, unapologetic, and undeterred interposer. Thomas Jefferson was a flawed man, as the left loves to point out, but he gave us the most consequential and meaningful document that any man has produced for mankind – the Declaration of Independence. The world has never been the same.

References:

VIDEO – President Obama, in a press conference, stating “I have a pen and I have a phone.” Referenced on YouTube: https://www.youtube.com/watch?v=G6tOgF_w-yI

Richard L. Aynes, “On Misreading John Bingham and the Fourteenth Amendment,” Yale Law Journal, October 1993, Pg. 57. Referenced at: http://www.constitution.org/lrev/aynes_14th.htm

Title VII of the Civil Rights Act of 1964 – https://www.eeoc.gov/laws/statutes/titlevii.cfm

“The Short History of the Battle Over the Ten Commandments in Alabama.” http://www.wsfa.com/story/421482/short-history-of-the-battle-over-the-ten-commandments-in-alabama

Lawrence “Mike” Scruggs, The Un-Civil War: Shattering the Myths; 2011, Universal Media (Charlotte, NC), Chapter 6.