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Writer Says Efforts to End Abortion Should Focus More on Congress Than Supreme Court

Also says upcoming, young politicians will restore Founders’ vision of America

Commentary By Rand L. Brown II

After the Washington March for Life, it is a tradition of mine to stop by the National Archives and pay my respects to the hallowed documents that gave us our freedoms and our nation. This year, after moving slowly within the cathedral-like rotunda and after gazing at my personal favorite of the manuscripts, the Declaration of Independence, I approached the large glass case in the center that contains the heart and soul of our land. As I stood there looking at the Constitution, I could not help but meditate over the enormous struggle, both physical and supernatural, being waged in our time over the soul of the United States—that soul incarnated in the paper in the case in front of me—most especially concerning the issue of abortion.

Those thoughts led me on to others that lie still closer to the root of the abortion conflict, specifically, the recent phenomenon of judicial activism, a 20th Century mutation that threatens the very essence of what our Founders intended for this Republic. Absentmindedly, I began scanning over the articles and sections of the Constitution, whose prose I am rather familiar with (I keep a small copy of the Constitution with me always and encourage every American to do the same), and realized that the final solution to the "Abortion Problem" lay within those very words, but not where most pro-life Americans think it to be.

First, a little introduction to what I mean concerning the Constitution.

When the Founders met in 1787 at the Constitutional Convention, they chose for the first three chapters, or Articles, to discuss the three government branches that would form the framework of the American Republic. The first Article, and the longest of all Articles in the document, dealt with the Legislature, or, Congress. The second defined the office of the Chief Executive, and the third (and shortest of the three) is that which has the Federal Judiciary as its subject. These three branches would combine through their own well-defined functions to participate in the legislative process with each branch checking and balancing each other's power (a theory originating in Thomistic political thought).

However, why did the Founders discuss the three in the order we find in the Constitution today?

The events of the latter half of the 20th Century would have it make more sense to place the Article discussing the Supreme Court at the prominent front.  And yet, the Legislative Branch, i.e.. Congress, is the heart of the process that bears its name, and the Founders meant it to be so. Why? Simply because Congress is what directly carries the voice and will of the American people into the halls of our government. Therefore, Congress' rights are more numerous and more clearly defined than any other branch. In fact, according to the Constitution Congress has a substantial constitutional authority over the Supreme Court and the Federal Judiciary themselves!

The fact is that the Supreme Court was never meant to be active (in the way it is now) in the legislative process, for the very simple fact that it does not represent the people of the United States. The justices were intended, and ought still to be, impartial observers who cry foul against any deviation from constitutional precedent within a piece of legislation. This is why Alexander Hamilton assured the American people repeatedly in the Federalist Papers that the judicial branch would be the safest of all three.

Even so, the Supreme Court cannot halt a piece of legislation, because Congress can overthrow a Supreme Court ruling precisely because it, and not the Judiciary, is the voice of the American people. As far as the inferior Federal courts are concerned, it is Congress' explicit right, as expressed in both Article I section 8 and Article III section 1 of the Constitution, to create and dissolve those circuits when it sees fit. This is why it is positively infuriating to watch a single federal justice in Nebraska completely halt and hamstring the Partial Birth Abortion Ban and a weak-kneed Congress allow it to happen.

This brings me to my point that the threat of abortion is not coming from an activist Federal Judiciary, but rather from an apathetic and confused Congress currently suffering a crippling identity crisis.

For the most part the debate over Abortion has been cleverly focused around the Federal Judiciary, and, unfortunately, many pro-life activists and politicians have come to accept that. 

First off, unlike what the ubiquitous pro-abortion slogan "Keep Abortion Legal" would have you believe, abortion in the United States is still not legal.  Roe vs. Wade was merely a ruling made by the Supreme Court that declared any law outlawing abortion to be unconstitutional. Some would argue that, yes, that may be true, but that still doesn't mean it's illegal either.  However, that point still doesn't account for the fact that, to this day, there is no law in this country that legalizes the "right" to abortion.

The only body that could make abortion legal, or illegal, is that very body designated by the Founders to be the voice of the American people: Congress. Constitutionally, Congress could illuminate abortion either in the form of a constitutional amendment identifying the unborn child as a citizen (with all the rights of an American citizen) or by simply outlawing abortion on demand nationwide. However, we are living under a Congress that has forgotten what it is supposed to be. Senators and Representatives are too busy playing "committee tag" and collecting reelection brownie points instead of fulfilling their mission for which we—yes, we—sent them to Washington in the first place.

Well then, why is it this way? The simple fact is that it is highly convenient for a Congress so desperately concerned about reelection to avoid hot-button social issues that seem to accumulate bad press, and to instead pass them over to activist Federal justices, impatient to flex their progressivist muscles, who don't have to worry about little formalities like elections. 

Not to criticize the March for Life—a truly noble and provocative rally for pro-life Americans, the likes of which is found nowhere else in the world—but I disagree with ending the March in front of the Supreme Court building. To me, it seems that gesture, as does the disproportionate attention shown to Supreme Court nominees by pro-life activists, grants the federal judiciary the very legislative legitimacy it wants us all to believe it possesses.

It would be much more appropriate to end in front of the real seat of true power in Washington, the Capitol building. For it is there, not in the Supreme Court, that the fates of millions of Americans not yet born will be decided, along with the soul of the nation itself.

As for the present Congress in office, there appears to be very little hope. It is still too full of the older "professional politician" generation to be able to rise out of its identity crisis. For future Congresses, as for the future of our nation, I have an undying hope, especially in the younger generations of Americans swiftly rising above the follies of the older ones and capable of being reunited with the Founders' vision for our Republic. It is interesting to note that, with a few exceptions, all the strongly pro-life Senators and Representatives are mostly below the age of 45. 

Someone once told me, recently, that she believed our civilization was declining. I beg to differ.  Civilizations only decline and fall when their people allow them to fall and, so far, I do not see that despair in the faces of my fellow Americans, especially not in the youth.

The United States is once again in the position to lead the West and the Free World into history again by being the first superpower to outlaw the horrific practice of abortion. That will only happen if "We, the People", the real guides of the American Destiny, never give up hope, and never fail in our duties.  God bless the United States, and those who made her free!
 
Editor’s Note: Rand Brown is a student and the founder and chairman of the “College Republicans” at Christendom College, a liberal arts college located in Front Royal Virginia.

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