We the People Act(HR 3893 IH)March 4, 2004 To limit the jurisdiction of the Federal courts, and for other purposes. Mr. PAUL (for himself and Mr. BARTLETT of Maryland) introduced the bill in the 108th Congress and needs to be introduced in the 109th Congress.

Thursday, January 6

Republicans Offer the Unborn 32 More Years of Roe v. Wade

In a December 16, 2004 National Review Online article A Pro-Life Mistake , Attorney Clark D. Forsythe of Americans United for Life recommended that State Legislators cease and desist in the introduction of legislation prohibiting abortion in their States. Attorney Forsythe counseled that since the Supreme Court is not pro-life (despite the fact that Republican Presidents appointed a super-majority, seven out of nine, of those Justices), it would be folly to introduce such legislation at this time. An old proverb comes to mind, "If not now, when?"

On November 2, 2004, the American electorate voted into office a Republican President, Republican House, Republican Senate and a majority of Republican Governors. The Supreme Court is made up of a super-majority of Republican appointees. We have, in America, undeniable Republican Party Rule. If the Republican Party is pro-life, now is the best and only time to effectuate any real pro-life legislation.

Those pro-lifers who refused to support the reelection effort of Mr. Bush were told that the election was about the judiciary and the Supreme Court - without good appointments, we'll have another 32 years of Roe v. Wade, we were told. Prior to the election, and since, was there any evidence from the White House that there is any intention to nominate pro-life justices? In fact, has not Mr. Bush nominated several abortion supporting judges to the lower benches, and wasn't his campaigning for Alren Specter (who has promised to block all pro-life Justices) evidence that Mr. Bush has no intention of creating a pro-life judiciary and of eliminating legal abortion in America.

Perhaps we must come to grips with the fact that with Republican President, Republican Senate, Republican House and majority Republican appointees on the Supreme Court, 4,000 dead babies daily is the best the GOP has to offer. Given the President's remarks in the third Presidential debate, that "reasonable people can come together and put good law in place that will help reduce the number of abortions," we ought not be looking to the Republican Party as the vehicle by which abortion will be made illegal. All the big-government GOP has to offer is regulations that might reduce the number of abortions. I know from a statistical point, 1,000 puréed babies daily would be "better" than 4,000 diced-up babies, but it is not better for the 1,000 the President has permitted to die on his watch.

I question why the director of Americans United for Life (AUL) would council his fellow colleagues in the pro-life movement to refrain from introducing legislation that would prohibit abortions. I can't help but believe that he shares the opinions of the Republican Party - and the President specifically - regarding minimizing abortions, and he is not committed to ending legal abortion in America. The AUL offers model legislation guides to pro-life lobbyists on Abortion Clinic Regulations, Cloning, Crimes Against the Unborn Child Act, Human Embryo Research, Heath Care Rights of Conscience Act, Parental Involvement for Minors Seeking Abortion, Physician-Assisted Suicide and Informed Consent Legislation. Not a one of the AUL eight recommended legislative strategies decries the legality of abortion. If, and frankly since, abortion is immoral and unlawful, it cannot be regulated without us acquiring the same bloody hands that the pro-abortion lobbyists have. Regulating abortion concedes its legality, and assumes that abortion is here to stay as a Constitutionally secured right. Apparently this is the best the Republican-minded pro-lifers have to offer - to concede defeat before the battle begins. Compromise requires that you be willing to accept half a loaf, we are told. Then the GOPers ask for a quarter loaf, and get about an eighth. Why has no one thought to ask for a loaf and a half? Preemptive concession - in this case that abortion is legal and will remain such - is the rule of day.

Additionally, regulating abortion creates new federal regulative programs, requires funding and oversight, and permits the pro-life movement to remain on its high horse demanding more federal intervention in abortion related causes.
Keeping abortion legal for nearly 32 years now is quite possibly the best fund-raising strategy any lobbyist organization could have ever conceived.

It is due to this politically impotent view that I am not a member of the Republican Party. When you belong to the political machine, as Attorney Forsythe and his Americans United for Life, the National Right to Life and other compromisers satisfied with being the reasonable people the President suggested would come together and pass good laws permitting a certain number of abortions, you lose your taste for victory. What Mr. Bush, Attorney Forsythe, the AUL and others have effectively said is that they want abortion to remain safe, legal and rare. But, if every pregnancy resulted in a natural end (either birth or miscarriage), but abortion was still legal, the pro-life movement would have lost the battle, and the pro-abortion "rights" advocates would have won.

The GOP and the pro-life lobbyists have demonstrated their lack of commitment to the unborn, and they must, therefore, be opposed. They are no longer the friend of the unborn, and they are no longer our friends if they are unwilling to expend the political capital we have given them to protect the unborn. Parties and lobbyists are vehicles to advance a cause – if they stop advancing, it is time for us to find or create one that will.

The crux of Attorney Forsythe's argument (I'm not picking on him since in reality the grand majority of these "pro-life lobby" organizations would contend the same as he) is this: Legislatures, don't expend in 2005 the political capital received in 2004 since the courts will oppose you, and you will be slapped with an attorney's fees bill from the ACLU.

Legislators, if I may humbly submit to you an alternative to the preemptive concession of Attorney Forsythe: If you fail to act, you will be slapped with a bill for the blood of the unborn you have permitted to be shed in your State. As State Legislatures,
you can interpose between the Judicial Usurpation of Roe and the unborn babies in the womb. Since Roe was decided unconstitutionally and fraudulently, it is void ab initio and invalid as against the States - but you must be willing to make and stand by that argument.

As a party to the Contract of the United States Constitution, you have an absolute right to insist upon compliance to it from the other Party, namely the Federal Government. Go right ahead, declare abortion illegal - you have, after all, also taken an Oath to the United States Constitution. To submit to Roe in your jurisdiction is to commit perjury of your Oath to uphold and defend the Constitution against all enemies, foreign and domestic.

The only question left is this: If the Republicans elected into office are willing to make that stand, will the leaders of the Party and the pro-life movement support it? If not, and frankly my hopes are not very high, or if they are not even willing to raise Interposition as a remedy against a Federal usurpation of power, it is time to conclude that neither the Republican Party, nor the pro-life lobbyists, are committed to ending legal abortion in America.

Republicans Offer the Unborn 32 More Years of Roe v. Wade, December 17, 2004, by Scott T. Whiteman, Esq.

The Irrepressible Myth Of Marbury .pdf file requires Adobe Acrobat Reader (free), or can be read in online @ The Irrepressible Myth Of Marbury

CONSTITUTIONAL THEORY COLLOQUIUM SERIES

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago - 1803, if the storyteller is trying to be precise - in the famous case of Marbury v. Madison,1 the Supreme Court of the United States created the doctrine of "judicial review." Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional.


As befits the name of the court from which the doctrine emanates, the Supreme Court's power of judicial review - the power, in Chief Justice John Marshall's famous words in Marbury, "to say what the law is"2 - is supreme. The Congress, the President, the states - indeed, "We the People" who "ordain[ed] and establish[ed]"3 the Constitution - are all bound by the Supreme Court's pronouncements. Thus, the decisions of the Supreme Court become, in effect, part of the Constitution itself. Even the Supreme Court is bound by its own precedents, at least most of the time. Occasionally the Court needs to make landmark decisions that revise prior understandings, in order to keep the Constitution up to date with the times. When it does, that revised understanding becomes part of the supreme law of the land. Other than through the adoption of a constitutional amendment, however, the Supreme Court is the final authority on constitutional change.


Judicial review (the myth continues) thus serves as the ultimate check on the powers of the other branches of government, and is one of the unique, crowning features of our constitutional democracy. The final authority of the Supreme Court to interpret the Constitution has withstood the test of time. It has survived periodic efforts by the political branches, advanced during times of crisis (the Civil War and the Great Depression) or out of short-term political opposition to initially unpopular or controversial rulings (like Brown v. Board of Education4 and Roe v. Wade5), to undermine this essential feature of our constitutional order. Through it all - Dred Scott6 and the Civil War, the New Deal Court-packing plan, resistance to Brown, the Nixon Tapes case,7 the Vietnam War, the quest to overrule Roe v. Wade - the authority of the Supreme Court as the final interpreter of the Constitution has stood firm. Indeed, the Court's authority over constitutional interpretation by now must be regarded, rightly, as one of the pillars of our constitutional order, on par with the Constitution itself.

So the myth goes.

By Michael S. Paulsen, Briggs & Morgan Professor of Law

Very long article that is a must read for the pro-life constituency that dosen't understand Republicans Offer the Unborn 32 More Years of Roe v. Wade

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