ARLINGTON, VA —In Parts I and II of A Pro-life Manifesto, we
saw why the success of the pro-life movement is critical to America’s
future, reviewed past mistakes, and outlined a new beginning. Now let
us focus on the additional steps we need to take.
William J. Quirk has thoroughly established that Congress has virtually
complete power over the appellate jurisdiction of the Supreme Court
and unlimited authority over the federal judiciary. Congress could,
if it wished, completely abolish the latter by statute. (Courts
and Congress: America's Unwritten Constitution, Transaction Publishers,
These powers reside in the language of Article III, Section 2 of
the Constitution: “In all the other Cases (in which the Supreme
Court does not have original jurisdiction; parenthesis added), the
Supreme Court shall have appellate Jurisdiction, both as to Law and
Fact, with such Exceptions, and under such Regulations as the Congress
Quirk’s contention is not some esoteric theory untested in
American history. After the Civil War, a Southern newspaper editor
wrote articles opposing Congress’s reconstruction statutes. When
he was arrested under those very statutes, he appealed for habeas
corpus to the Supreme Court. While his appeal was being heard, Congress removed
the Court’s jurisdiction with its Article III, Section 2 authority.
The Court subsequently acknowledged this authority unanimously, saying “the
power to make exceptions to the appellate jurisdiction of this court
is given by express words.”
The Norris-LaGuardia Act of 1932 removed the power of federal courts
to issue injunctions in labor disputes. In the 1950s, a bill was introduced
to remove the Court’s jurisdiction in civil liberties cases involving
Communists, and in 1979 another bill to strip the Court of jurisdiction
over school prayer. Both bills failed to pass, but no one questioned
their constitutionality. One legal scholar commented, “You can’t
challenge the constitutionality of a constitutional provision.”
Such bills are called “strippers.” With a simple majority
in the House and Senate and a president willing to sign it, a stripper
as worded below could obliterate the noxious constitutional presence
of Roe v. Wade:
“1. In its decision of January 22, 1973 (Roe v. Wade, No. 70-18,
314 F. Supp) the Supreme Court determined that it did not need to determine
the difficult question of when life begins. Because science now shows
conclusively that it begins at the moment of conception and that the
complete genetic composition of a new human being is then present,
a human conceptus shall be defined for all purposes of federal appellate
review as a ‘person’ within the language and meaning
of the Fourteenth Amendment.
“2. The Court, accordingly, is directed, in accordance with
its own holding in the cited decision that if ‘person’ were
so defined, its findings would ‘collapse,’ to guide lower
federal courts in how to deconstruct the primary holding and all
its juridical and precedential consequences.
“3. The jurisdiction of the Court in all legal questions
pertaining to the practice of abortion is hereby removed, with the
exception that the Court shall continue to insure Fourteenth Amendment
protections to all United States persons as defined in this statute.
“4. This statute is enacted with specific reference to Article
III, Section 2 of the Constitution. Any effort by any public official
exercising Article III authorities to challenge, undermine, or rule
on the constitutionality of this statute shall be regarded as compromising
that official’s ‘good Behavior’ as understood in
Article III Section 1.”
In other words, any judge defying this enactment could be impeached
and removed from office.
A stripper bill such as this has advantages and disadvantages. Enactment
requires only a simple majority in both houses of Congress and a compliant
president. This is far easier to accomplish than a constitutional amendment.
The disadvantage is that, unless a popular pro-life majority is maintained,
a subsequent Congress could restore the status quo ante by repealing
It can be argued that the simple reversal of Roe v. Wade throws the
issue back into the laps of the individual states and that many, many
abortions would continue to be performed legally in various locations.
However, the stripper bill as I have drafted it (no doubt the wording
can be made even more precise by professional bill drafters) would
leave the Supreme Court responsible for safeguarding Fourteenth Amendment
rights, extended to include the rights of preborn citizens.
I, along with many other strict constructionists, am philosophically
opposed to the constitutional smorgasbord set forth by the expansive
reading of the Fourteenth Amendment. But I can swallow my scruples
on that point if it means rescuing America from the scourge of abortion.
Tragically, the second Bush administration, which came to power largely
on the strength of its pro-life pretensions, squandered its opportunity
to have this historic victory. For four years, from 2002 to 2006, President
Bush enjoyed clear Republican majorities in both houses. With a strong
push, he could have consigned Roe v. Wade to history’s dustbin
in the manner I describe above.
Thus, we can see clearly what a terrible mistake it was to align
the pro-life movement so closely with Republican fortunes, and how
absolutely necessary it is to build a new, pro-life party. In Part
IV we will survey the changes required to bring a popular majority
into our camp.
The Unrepentant Traditionalist is copyright © 2009 by Frank
Creel and the Fitzgerald Griffin Foundation.
All rights reserved.
Frank Creel, Ph.D., a columnist and author, was an English teacher
in the Peace Corps in Turkey. He is fluent in the Turkish language
and in Arabic script.
See a complete biographical sketch.
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