The Declaration of Independence and the Right to Life

...Because, in fact, Marshall draws the very words of this part of his opinion almost exactly from the Declaration of Independence itself—from its second paragraph, which reads, "It is the right of the people . . . to institute a new government laying its foundation on such principles . . . as to them shall seem most likely to effect their safety and happiness...

...When the issues of life and liberty are at stake, can it ever be right to do wrong...

...the Federal and State Constitutions . . . and Other Organic Laws of the United States, 1877...

...And did the founders implycorrectly that any law or judicial ruling which violates these inalienable human rights is, by its nature, unenforceable, indeed unconstitutional since, according to the Declaration of Independence—the congressional act which united the Colonies and legitimated independence—it is primarily "to secure these [inalienable human] rights" that "governments are instituted among men...

...But today it must be said that Lincoln's view of the self-evident truths of the Declaration is a minority position—among liberals and conservatives—confronting as it does a prevailing consensus of relativism in the courts, the legislature, and the law schools...

...Surely it is correctly supposed under the American Constitution that all persons cannot be endowed both with the liberty to hold slaves and with the inalienable right to liberty...

...When Lincoln emphatically called himself a conservative, it was the first principles of the Declaration, our "ancient faith," which he sought to conserve, or rather restore in the Constitution of the United States...

...And, like the unresolved issue six score years ago—i.e., of thepositive right of property of the white man in a black slave, or, on the contrary, the inalienable right to liberty of the black man—this current issue, too, shall be resolved, either for the positive right to abortion of the "foetus" (a chattel...

...In this sense Lincoln was neither a radical nor a conservative...

...So, it should come as no surprise that we the people shall againhave to answer the question put so poignantly by Abraham Lincoln to his fellow Americans and to Senator Stephen Douglas in the great debates of 1858 and later in 1860 at Cooper Union: When the issues of life and liberty are at stake, can it ever be right to do wrong...

...And these we can know only from a right reading of the American Constitution...

...Marshall, Mr...

...And there is no more important choice before us as a people...

...Lincoln—all of whom maintained for the Declaration...

...The enduring question is: Shall the actual meaning of the Constitution—the original intent of the founders, as revealed in the document itself and illuminated by its history—prevail in all applications by the Supreme Court...

...ciples of the American Founding—the Declaration of Independence...

...But if judicial supremacy, or majority rule, or "popular sovereignty" leads to an extra-constitutional decision, an unnatural outcome, can there be no further appeal under the last best hope—the authentic Constitution of the United States...

...Lincoln was, in fact, one of the most persuasive advocates of what the great legal historian, Edward S. Corwin, called the "higher law" principles of the American Constitution...

...And, further, are strict text-based considerations now irrelevant, as "non-interpretivists" imply, when finding and applying the fundamental law of the land...

...Code of Laws certainly incorporated the Declaration of Independence into the Constitution of the United States...

...In their absence, the THE AMERICAN SPECTATOR APRIL 1987 21 people—dedicated to the proposition that all men are created equal and endowed by their Creator with-inalienable rights—should institute new government...

...and further that all men "are endowed by their Creator" with the inalienable right to life, and to liberty...

...22 THE AMERICAN SPECTATOR APRIL 1987 s titutional interpretation in the supervening extra-textual opinion of Supreme Court Justices themselves...

...Surely not Mr...

...This ancient doctrine suggested that the founding principles of the American regime, according to which the positive law of the Constitution ought to be interpreted, were first and best codified in the natural right doctrine of the Declaration of Independence...

...Is it not a biological necessity, if it were not manifestly plain from the sequence of the actual words in the Declaration and in the constitutional amendments themselves, that liberty is made for life, not life for liberty...

...That is to say, Justice Marshall used a substantially internal analysis of the actual document itself to find in its text the framers' intent—carefully applying rational rules of legal construction which depend primarily upon the plain meaning of the words, the full context of the words, the relations of the words in the different parts of the Constitution, the subject matter with which the words of the law deal, and the obvious spirit orcause which gave rise to the law itself...

...But while the Supreme Court majority today has all but ignored it, there is another authoritative way to discover original intent, as Christopher Wolfe reminds us in his important book, The Rise of Modern Judicial Review (Basic Books, 1985...

...Given the consequences of Roe v. Wade, can it thus be concluded that a well-intentioned but overreaching Supreme Court decision brought about a "coup" against the Constitution and the amendment-making authority of the American people...

...See the position of the Declaration in The Public Statutes at Large of the United States of America 1-3, 1854...

...Instead he argued for restoration of the original principle of the American Republic—equality of all persons before the law—a principle to be carried out gradually and prudentially in due deference to countervailing circumstance and necessity...

...He enshrined his reasoning in the Mar-bury decision...

...Or, on the other hand, are Jefferson, Madison, Washington, Adams, and Lincoln right when, affirming the Declaration and "the laws of nature and of natures God," they "hold these truths to be self-evident, that all men are created equal...

...The Chief Justice clearly held that the judicial department is circumscribed...

...Often cited by both judicial supremacists and legal positivists who reject natural law, Marshall in Marbury considers "the question, whether an act, repugnant to the Constitution, can become the law of the land...

...For in any exegesis of Lincoln's rhetoric one discovers not the temperament of a lawyer but the jurisprudence of a lawgiver...

...For, as a nation founded under God, ours is a house which, divided against itself, cannot stand...

...Accordingly, if it may now be said that the Fourteenth Amendment indirectly incorporated certain of the Bill of Rights, so too must it be affirmed that the first American Congresses, the original intent of the founders, and, moreover, the U.S...

...Today, in the great debate over the authentic Constitution, inaugurated by Attorney General Ed Meese, conservatives are faced with several unresolved but fundamental issues: Are the legal positivists and legal realists, heirs of Justice Oliver Wendell Holmes and Justice Charles Evans Hughes, right when they declare the American Constitution to be essentially what Supreme Court Justices or elected legislators say it to be—their rulings and statutes thus unappealable—even ifsuch "law" plainly violates not only the organic law of the nation but also the law written in our hearts...

...But, echoing Marshall, one must now ask: can it be supposed that the Declaration, the fundamental act of union, which provides the basis for the American people to establish constitutional government—can it truly be supposed that this explicit charter of the inalienable right to life is to be ignored by Supreme Court Justices, legislators, Presidents, and law school professors...

...T he lawful basis of the American Republic is thus, in fact, found by Chief Justice Marshall in the very same organic law upheld by Abraham Lincoln, the Declaration of Independence...

...But in Marbury v. Madison, Marshall states: "It is emphatically the province and duty of the judicial department to say what the law is...

...But the phrase such principles must also refer to its antecedents, specified in the precedingparagraph of the Declaration, namely, those self-evident truths which hold that all men are created equal and endowed by their Creator with the inalienable right to life and to liberty...

...and it is limited by legislative (or constitutional) intent...

...Madison, Mr...

...the United States Code XIX-XXII, 1940...

...But why is Marshall so absolutely sure of "the basis" and "the principles" deemed fundamental to the Constitution—that is, to the "whole American fabric...

...That is to say, the Declaration is part of the organic law by which to interpret American constitutional principles and to discover the original intent of the framers...

...A dapting Lincoln's words from his patient struggle for the inalienable right to liberty in the 1850s, we may now say that the "durable" moral issue of our age is the struggle for the inalienable right to life of the child-inthe-womb--and thus the right to life of all future generations...

...Indeed, even the people are here constrained in the Declaration of 1776 to consent only to a government of just powers and laws...

...This question shall not finally be answered in the law schools, for in the struggle between the moral and natural law (the Declaration of Independence) and legal positivism (adventitious, judge-made law), Americans will soon have to choose in coming presidential and congressional elections...

...Are we finally to suppose that the right to life of the child-about-to-beborn—an inalienable right, the first in the sequence of God-given rights warranted in the Declaration of Independence and also enumerated first among the basic positive rights to life, liberty, and property stipulated in the Fifth and Fourteenth Amendments of the Constitution—are we, against all reason and American history, to suppose that the right to life as set forth in the American Constitution may be lawfully eviscerated and amended by the Supreme Court of the United States with neither warrant nor amendment directly or indirectly from the American people whatsoever...

...Moreover, Marshall's legal reasoning and opinions show how and why, according to commonly accepted rules of judicial interpretation, the original intent of the framers of the Constitution can best be discovered "intrinsically...

...further, that governments hold only "just powers derived from the consent of the governed...

...For the stakes could never be otherwise under a government characterized by "just powers...

...Whether we resolve it immediately or not, the issue of abortion is now joined...

...In the full light of the resulting holocaust, are we at last to suppose that legal positivists and judicial supremacists, even some conservative advocates of original intent and strict construction, all of whom cite Marshall, may properly abandon the Declaration of Independence, the lawful source of those inalienable human rights which are now, in the case of Roe v. Wade, issues of life and death—when not only the Founding Fathers but Chief Justice Marshall and President Lincoln find that certain American "principles . . . are deemed fundamental," because they stem from the Declaration...

...It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it...

...May it be reasonably supposed that an expressly stipulated right to life, as set forth in the Declaration and the Constitution, is to be set aside in favor of the conjured right to abortion in Roe v. Wade, a spurious right born exclusively of judicial supremacy with not a single trace of lawful authority, implicit or explicit, in the actual text or history of the Constitution itself...

...That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness, is the basis [my emphasis] on which the whole American fabric is erected...

...That way we can find in the work of Chief Justice John Marshall, whose preeminent authority has been claimed not only by traditionalists who hold that the Supreme Court Justice must always find the actual meaning of the law in the original intent of the framers, but also by judicial supremacists who hold that the judge must and should legislate himself...

...Only, therefore, in light of the organic link between these two documents might American conservatives fully illuminate the great constitutional and moral debates of the present moment...

...Only prudential and practical wisdom, combined with compelling circumstance and necessity, could have delayed the resolution of both historic issues in the true American Republic...

...That the law, above all, is intended to do justice, whatever the rules of construction, is a first principle of Marshall's jurisprudence which he makes clear in Marbury v. Madison by asking the fundamental question: "Can it be imagined that the law furnishes to the injured person no remedy?' no matter how small, helpless, defenseless, or obscure the person...

...IT f it might be said that Abraham Lin- coln, the circuit court litigator, was the framer of the post-Civil War Constitution, then it may also be said that President Lincoln was his own John Marshall...

...For it is no exaggeration to say that the future of the world now depends upon the future of American conservatism—and, therefore, upon the true principles of the American Republic we would conserve...

...or, on the contrary, for the inalienable right to life of the childabout-to-be-born (a person...

...To this question Marshall had an unequivocal answer...

...These are the penultimate stakes in the current controversy over how, once again, to interpret the inalienable human rights of the American founding...

...Nevertheless, no one can deny that the Declaration was, and is, placed first in the United States Code of Laws (1940)—even ahead of the Constitution—and described therein as "organic law...

...Indeed, if the Lincoln of the great debates and the Gettysburg Address did not exist, I would want to invent him, if only to reappropriate for modern conservatives, once and for all, the first prinLewis E. Lehrman is founder of the Lehrman Institute, a public policy forum...

...In the one case, as with Attorney General Ed Meese (see his Dickinson College speech of 1985), one is carefully directed to find in the Declaration of Independence an extrinsic authority by which to determine the original intent of the framers of the Constitution...

...And further, he declares, "we [judges] must never forget that it is a Constitution we are expounding," not the legislative opinions of judges...

...Is it to be reasonably supposed that the right to liberty is safe if the right to life is not first secured...

...or for the chattel right to dispose of property in the child-about-to-be-born (popular "pro-choice...

...THE AMERICAN SPECTATOR APRIL 1987 23...

...always for the purpose of giving effect to the will of the lawn—law made by the legislator who draws his authority directly from the people...

...the Revised Statutes of the United States 3-6, 1878...

...Moreover, the fundamental principles of natural justice, suggested Marshall in Ogden v. Saunders, stemmed from the very principles of "the framers of our constitution" who "were intimately acquainted with . . . the law of nature' because "the language they have used" in their writings and documents, such as the Declaration and the Constitution, "confirms this opinion...

...To this question Marshall rejoined: "It is not believed that any person whatever would attempt to maintain such a proposition...

...Is this intent, the true meaning of the framers, too imprecise—thus unknowable—justifying the now trendy conclusion that the law can only be what Supreme Court Justices and legislators say it is...

...for not only Thomas Jefferson, but also James Madison, the father of the Constitution, held the Declaration to be, in their words, "the fundamental act of union...

...Thus Lincoln was clear and correct when, in 1863, he said "four score and seven years ago"—that is, on July 4, 1776-`our Fathers brought forth a new nation...

...indeed, all persons cannot be endowed both with the liberty to take innocent life by abortion and with the inalienable right to life...

...The implications of this fact are too often ignored by constitutional scholars who focus narrowly on the positive law of the great charter of 1787 and its subsequent amendments...

...Surely "it is not believed any person whatever would attempt to maintain such a proposition...

...These are the first principles of the American regime laid down by the founders at the birth of the republic on July 4, 1776...

...in the other case, as with Justice Harry Blackmun (see his opinion in Roe v. Wade), one is circuitously directed to discover an extrinsic authority for congunnitgffill-71AA When Lincoln emphatically called himself a conservative, it was the first principles of the Declaration, our "ancient faith," which he sought to conserve...

...The elite consensus may best be summed up in the words of my friend, Benno Schmidt, former dean of Columbia Law School and now president of Yale, who in discussing this issue with me said, "American constitutional law is positive law, and the Declaration of Independence should have no standing in constitutional interpretation whatsoever...

...Thus, Marshall found it straightforward if sometimes painstaking to decide faithfully whether a law or act or judicial decision was unconstitutional...

...In deciding what is to be done to resolve the issue of abortion, conservatives must never forget the compelling case for Lincoln's conservatism, grounded as it was in the Declaration of Independence, the organic law of the American founding...

...and finally, "that whenever any form of government becomes destructive of these ends [namely, the inalienable right to life and to liberty] it is the right of the people to alter or abolish it, and to institute new government...

...Nor need one accept all of Lincoln, the apologist and evangelist of the Declaration of Independence, to declare certain truths indispensable to the triumph of the idea of the American Republic...

...and, further, is it to be maintained that human life "endowed by the Creator" commences in the second or third trimester and not at the very beginning of the child-in-the-womb...

...He did not say three score and 14 years ago—or 1789...

...Moreover, is it true, as historicists, relativists, and nihilists argue, that original intent—the actual meaning of the framers—is undiscoverable in the history of the Constitution, or even by a deep reading of the document itself...

...Such was Lincoln's principled and prudential policy toward slavery...

...I ronically, contemporary legal theo- 1 ry, both conservative and liberal, tends to decide constitutional intent by reference to authorities substantially outside the four corners of the full text of the Constitution itself...

...And by what principles shall it be 'decided...

...And, moreover, "the principles, therefore, so established are deemed fundamental...

...Jefferson, Mr...

...Or is it now to be suggested that the law is only what the "sovereign" people vote it to be—no matter if judges, legislators, and the people decide and vote, say, for the permanent chattel right to dispose of property in the black man ("popular sovereignty...

...Washington, Mr...

...Yet in McCullough v. Maryland he emphasizes that "where the law is not prohibitive' [i.e., where the law does not clearly prohibit a legislative action], for judges "to undertake . . . to inquire into the degree of [the law's] necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground...

...But let us read, in Osborne v. Bank of United States, the words of Chief Justice Marshall himself: "Judicial power is never exercised for the purpose of giving effect . . . to the will of the judge...