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The Basics of Constitutional Law
re: Abortion

F. Earle Fox

See also, The Constitutional Buck Stops Here -- at We, the People
&
Abortion & the Declaration of Independence

1. Introduction

I am writing this, as most of my pieces on law, with trepidation, as this is not an area of my formal training, only self-taught, though with many excellent mentors.  But I am determined to see the results as they work their way out.   I have spent much time developing the Biblical vs. the Secular/Pagan worldviews on which such subjects as politics and law ultimately rest.  This piece is partly an attempt to sort out how law can develop in either of these worldviews.  As with every other subject, the two come out polar opposites.  That is because they begin with ontologically and metaphysically polar opposite presuppositions. 

This article has been inspired by an intense debate over whether crimes such as abortion should be dealt with from a "top down" federalist approach or a "bottom up" states' rights approach.  Is abortion essentially a matter of state jurisdiction, or is there a federal obligation to intervene to prevent abortion, the killing of innocent life in the womb? 

The reader would do well to study the Biblical and the "Perennial" (secular/pagan) worldview diagrams as they illustrate in very simple format the basics of the worldview issues before us.  The foundation of Constitutional law emerges from the metaphysical realm, the realm of our Source of Being and of our Sovereign Lord.  It does not, because it cannot, emerge as positivists believe, from the history of case law as it accumulates on its own apart from the law and grace of God.  Because in the Godless world there is no moral legitimacy or obligation, only power struggle, there is also no political legitimacy or obligation, only power struggle.  Might makes right (or wants the weak to think it does).   

For the argument of that case, see Defining 'Oughtness' & 'Love'.  All morality comes from the law of God, and all political law rests on that prior moral foundation.  Only God can create an obligation, and therefore there is only one government in the whole cosmos, that of God.  If there is no creator God, then there is no legitimate government at all, that is, though there are persons who have power to coerce obedience, there are none who can legitimately command obedience.  There is power, but no authority.  We receive whatever legitimacy we have from God and God alone.  Authority comes from the Author.  That is just as true of our corporate moral foundations as it is of our personal salvation foundations.  Personally or politically, we are justified only by God.  That understanding will be the basis of what follows. 

I am assuming that personhood begins at conception and that the force of law protecting our right to life, liberty, and the pursuit of happiness applies from conception to natural death.  The question is how it applies, and who can legitimately enforce it. 

To get at the issues, we must review the history of how law can be, and has been, made. 

2. Secular/Pagan Legitimacy

Only in the Biblical worldview is there a morality, an objective difference between right and wrong, and therefore any real obligation.  All command apart from the law of God comes from the threat of force, not from legitimacy.  Pagan societies have had notions of law and rightness, but they have had no way of explaining from where such notions as an objective moral distinction could come.  The very fact that they have such notions, and hold them firmly, suggests that, unknown to themselves, they are living in fact in the Biblical cosmos.  They have consciences which have not been seared, and so, at some level of their being, they are hearing the Voice of God. 

In any event, as a matter of historical fact, outside the Biblical worldview, law developed by the "positivist" method, through the pragmatic accumulation of case law over time as a society, or its governors, sought to make some kind of reasonable sense of how to govern their social order.  Law did not develop from a revealed will of a divine being who created the cosmos with a purpose.  The divine beings available rarely themselves exhibited order in their own lives, other than that of power struggle.  And none of them created order, neither moral nor natural, in the cosmos.  If the deities had rules which they expect the underling humans to obey, their "legitimacy", as Mao Tse Tung said, came out of the other end of a gun barrel.  They had the biggest lightning bolts.   

Therefore laws (such as the Law Code of Hammurabi) were "ordered" to the convenience and power of those at the top, rather than to the welfare of the populace.  Consent of the governed was neither asked nor given.  It was the commonly assumed principle that the strong ought to rule the weak.  How far they thought that principle through no doubt varied, but it was the de facto principle in most, if not all, pagan societies, with the support of such worthies as Plato and Aristotle. 

There was nothing in their God-less universe to tell them otherwise, and much to tell them so, such as the drive for survival.  In a world with no moral or natural order given by a Creator, life was inherently chaotic -- eat or be eaten.  The only order available was that imposed by the "strong man", so personal worth was measured largely in terms of sheer power. 

But even the most pagan or secular of societies can discern a minimal necessary order for survival.  It is quite evident that life is enhanced by certain things, such as food, water, shelter, friendship. etc., and that life is diminished by certain other things such as war, famine, strife, falsehood, etc.  But the value systems derived from such observations are subjective because different persons and different cultures have quite different views on the kind of life they prefer.   So no universal and objective value system was possible. 

And even if they all agreed, they had no means of establishing an obligation about the matter.  It could not be shown that survival, respect for life, or love of neighbor was itself an obligatory goal.  It was just another "nice idea", with too many subjective interpretations to be the basis of a universal code of ethics or law. 

A cosmos which emerged by random chance out of an inexplicable and intellectually opaque source, as does the pagan/secular cosmos, provides no rational sense of direction or value.  Power and pragmatism are all they had by which to create whatever order they could.   The two hundred year pax Romana was the gift of Roman tyranny imposed at sword point. 

But it was nevertheless a part of God's "fullness of time" for the Gospel to travel around the Mediterranean basin.  

3. Hebrew Ethical Monotheism & Christian Evangelism

The advent of the Hebrew notion of a Creator God who brings the cosmos into being by His intelligent design has no parallel in ancient thinking.  Greek philosophers seemed to approach such ideas, such as the neo-Platonic demiurge, but the demiurge was not the original source of all being.  It was a secondary entity by which the existence of the world of space, time, and change might be accounted for -- without disturbing The Ultimate Reality -- which was timeless, motionless, and opaque to human reason.  In that wholly impersonal cosmos, positivist law necessarily held sway.  We made up our own law as we went along because there was nothing in the cosmos, other than our own power-struggle-pragmatism, to provide semblance of a law. 

Hebrew religion was dubbed "ethical monotheism" by scholars who saw the distinction between the Biblical worldview and all others.  The God of the Bible was a personal being, not an essence. an Idea, or an abstraction.  He was a law-giver, THE Law Giver. 

His laws expressed His reason for the whole of creation, the purpose for which it existed.  The particular laws, such as the Decalogue, pointed to ways of behaving which worked toward the fulfillment of the ultimate law.  That ultimate law Jesus picked out when asked (Matthew 22) for the meaning of the law -- the law of love.  We are to love God and our neighbor.  No law can supersede these two laws.  Any law in contradiction to these is no law at all.  (See The Foundations of a Free People...)

Such was foolishness to the pagan mind, schooled as it was in a cosmos devoid of either moral or natural order, and in which the strong man was relied upon to assert at least a minimal order for the survival of society.  Eat or be eaten -- survival of the strongest. 

The Biblical view took what the pagan world had understood as the pragmatic striving for the "good", the fullness of life, and, by the law of love, made that good an obligation, not just someone's nice idea.  The human race was now commanded to love one another, like it or not.  With consequences. 

The law of love was exhibited first by God Himself in the revelation of the Old Testament (from which Jesus quoted the two laws of love), and then acted out personally by Jesus in the New Testament redemption of the world.  That law of love was then taken out into the pagan Roman empire, where it was lived out by Christians in such a fashion as to bring the empire to its knees before the throne of God.  Not perfectly, but substantially. 

The good, that which pragmatically produces the abundance of life, was no longer just a nice-but-optional idea, it was now the fundamental obligation for all persons and all societies.  My being loved became no longer a matter of good luck, it became the fundamental obligation of all other persons toward me, and of me toward them.  The law of love expressed the very meaning of the cosmos, its very reason for existence.  The cosmos is about community, relationship, the pinnacle of which is the Kingdom of God.  The good, that which promotes life, was now wedded to the right, to moral obligation.   

Hebrew ethical monotheism introduced the world for the first time to reasonable and objective moral values, and thus to a new way of thinking about law.  The foundation for both personal and public law was the law of God.  Government no longer meant searching for the "pragmatically best" way to govern society.  Government was now given a mission -- to administer the laws which God had already given -- precisely those laws which, as Jesus noted, were made for man, not man for the law.  God was interested in people, not laws.  Positive law, case law, was important only as it pointed mankind toward that Kingdom of faith, love, and hope. 

The law was written in the Bible, but it was available also through personal revelation.  In communion with God, each man could come to know his own personal reason for existence.  The law is in principle accessible to all persons.  God is writing it in our hearts. 

Only so could the different levels of government be adequately ordered to God and to each other -- personal, family, various societies and corporations, civil, church, et al

But God has continued to lead us forward, closer to the Promised Land. 

One might consider the post-Reformation period of the "Enlightenment" to be the teen-age rebellion of the human race, leading eventually even to Nietzsche's 19th century "death of God".  We were, in a sense, growing up.  God had given us the rise of science and the development of legal due process and equality before the law, the beginnings of a freemarket economy, the printing press, and greatly expanded opportunities for mass education.  It was time for man to get out of his knickers, and begin exercising his new potential for adult freedom in self-government. 

It happened in two opposing directions, exemplified by two opposing revolutions:  the American, and shortly after, the French. 

4. Republican Government

The French thought of themselves as "republicans", but they went in a way precisely contrary to the American revolution which redefined "republicanism" to fit the American vision from God.  The French redefined theirs to fit their virulently atheist vision. 

But again, revelation did not stop with the writing of the Biblical canon.  God continues to teach and expand on those basics given in Scripture.  The extraordinary events of the American revolution are one of those periods of God speaking strongly and clearly to His people of His sovereignty as related to our own self-government.  Self-government, which had been experienced by the early Hebrews, but effectively scuttled when they asked for a king, had been on God's mind from the beginning.  It was now becoming a potential reality.  The mind of God was not changing, rather we, the human race, were changing and growing, and the Church, the vessel of accumulated revelation, was changing and growing -- through the long, patient administration of the intelligent design of God. 

And so we launched ourselves in America, 1776, with the Declaration of Independence -- with which the founders in effect redefined the meaning of 'republican'.  A republican government would be one which could effectively administer and defend the unalienable rights enumerated in the Declaration.  That would become the republican government to be guaranteed under the Constitution.     

America consciously and deliberately chose the republican form of government for its founding, rejecting democracy (which it saw to be the tyranny of the majority) and all forms of centralized government -- monarchy, oligarchy, etc. 

A republic, nevertheless, has a democratic element because the people choose their own leaders.  A basic principle of the American revolution was, "No taxation without representation."  We wrote a constitution to help ensure that we were a nation under laws, not under arbitrary persons.  Those persons we elect to rule over us are bound by the limitations imposed by the constitution.  

And, the American republic (in contrast to the French) also had a monarch.  As the Presbyterian clergy, especially, trumpeted, "No King but Jesus!" in response to the attempts by George III to subject them to tyranny.  America created a democratic, constitutional republic -- under God. 

5. Honest Pluralism

Government was to be the servant of the people, not its taskmaster, and that meant ensuring the most extensive freedom possible consistent with a society ordered under the law and grace of God.  America thus developed the first honestly pluralistic society, where every view was welcome into the public debate -- so long as it affirmed the right of others to enter that debate as well. 

Our constitution was written to guarantee just that open, level playing field for legislative debate -- and by implication, for all aspects of society.  Every view was welcome, not because every view was right (as in our irrational post-modern pluralism), but in order to find out in the public contest of ideas and goals, which view was right.  Views are plural, but truth is singular. 

Education was then freemarket, not government-controlled.  A freemarket of ideas will not happen unless there is freemarket education raising up young minds.  That is why the first universities in the world were founded in the late middle ages by Christians -- to uphold that freemarket of ideas.  Neither honest pluralism nor republican government will survive the loss of freemarket education -- as our current history shows.    

The "under God" part is essential, as the founders understood, because without God there is no moral order, and thus no moral constraint on the use of power, neither by the government nor by the people.  Back again to the pagan/secular dilemma.   God, as English common law recognized, was the ultimate ruler over all things in the cosmos (see Blackstone), so submission to His law was the first step in creating a legitimate government.

A republic typically has several elements: 

1. the rule of law (not of persons), including equality before the law;

2. consent of the governed;

3. separation of authority among the three branches of government;

4. dispersion of authority among lower levels of government: state, county, city, etc; 

5. representative, not direct, government; 

6. submission to the law and grace of God.  

Submission to God is not normally thought to be an aspect of republican government -- the French view eventually won out here in America.  But if there is to be a legitimacy (by which alone there can be limitation) to the government, that can come only from a law higher than government itself.  To have authority, one must be under it.  All else projects the government back into the secular/pagan dilemma -- arbitrary government by force of arms -- or, now in our kinder and gentler way, by mind-control.  Republican government as understood by our founding generation could happen only under God.  So I have added it here as a necessary aspect of American republicanism. 

 

America is today illustrating the loss of our republic and our constitution precisely because we have thrown overboard our Biblical foundations.    

The founders understood themselves to be guided by the law of God.  They were raised on Blackstone's Commentaries, and they searched the Scriptures in a whopping 34% of their researches, well above any other source (see The Delusion of Disbelief, David Aikman, p. 156-7).  

But, as history shows, a republic was not a common form of government, having failed all of its previous tests to survive the rigors of political life.  Some form of centralization, tyranny, or totalitarianism was always the government of choice -- at least of those at the top. 

Yet, God tells His own people (Romans 13:1) to obey the government.  That was not a command for blind obedience, but was tempered (as Christian behavior almost universally testified) by the forbidding of idolatry, i.e., acknowledgement of the local ruler as "Lord".  Only Christ could be given that title.  "Jesus is Lord!" was the banner under which Christians advanced on Rome.  That one "disobedience", energized by the law of love, ensured the downfall of pagan Rome into the hands of Christian faith. 

But nevertheless, those centralized pagan governments had a measure of legitimacy -- insofar as they indeed administered to the needs of the people.  God led his Christian people, as earlier the Hebrews, slowly, meeting them where they were, often in ignorance and rebellion.  But His consistent direction was toward greater self-government freedom, as they grew more capable of accepting that responsibility. 

The choice of a republic was scoffed by most Europeans, but it was the Word of God to those on the American shores.  It was a republic under the law and grace of God, not as the Roman republic, governed by wandering case law only.  Submission to the law and grace of God gave the American government a stability, and the American economy a dynamism, not before seen in human history. 

6. Abortion

All the above has been introduction to the issues with which we started, how is government to administer justice regarding abortion, the arbitrary, immoral, and illegal killing of a child in the womb?  The discussion on abortion which inspired this article polarized around whether the federal government has an obligation to defend the life of the innocent unborn or whether the matter is to be left to the states. 

Those against federal intervention point out -

(1) the dangers of giving the federal government any authority not enumerated in the Constitution.  Criminal law has been the domain of state governments, with only a few exceptions.  The development of a national police force to back up a national criminal justice system is not an idea friendly to the preservation of our liberties. 

(2) that there is no positive law, no statute, specifically enabling the federal government to prosecute abortionists or mothers who ask for their children in the womb to be killed.  For the federal government to intervene would run against consent of the governed, who have not enacted such authority for the federal government, and thus create a government acting arbitrarily and tyrannically in defiance of its Constitutional mandate.

Those in favor of federal intervention point out that -

(1) the Declaration of Independence makes life, liberty, and the pursuit of happiness primary values under which our government is to operate.  The protection of life is a primary obligation of all government, and part of specifically why government is instituted.  (All parties in the discussion seem to agree that the Declaration has mandatory authority over our government.) 

(2) the Constitution already gives the federal government authority to intervene in state affairs, as it did with slavery. 

(3) federal marshals should thus be sent to bring to justice persons who participate in abortion. 
 

The nature of our government, as indicated above, leads me to the following conclusions on the abortion issue. 

The protection and promotion of life is a primary, unavoidable mandate for all levels of government -- civil, personal, family, church, etc.  Wherever we are able to protect and promote life effectively, we should do so.  As with just war theory, there are conditions, such as having a reasonable chance of success, and not making the situation worse rather than better. 

Our handling of both Declaration and Constitution point to a long neglected responsibility of the federal government to supervise the behavior of the states with regard to their upholding the American republican form of government.  The federal government has itself long abandoned those requirements because Americans themselves have lost any serious knowledge of what we were given at our founding.  Few of our present rulers either understand or want the republic of our founding.  And most of our citizens, including Christians, are oblivious of the history and nature of our founding, and so cannot defend it.   

That will not change until the people are restored to proper knowledge of the matter, and that will not happen except as three other things happen: 

(1) government is taken totally out of education, which is then given back to parents and other non-governmental entities to produce again a freemarket education with a freemarket of ideas; 

(2) the Church, which is supposed to be the conscience of society, is renewed in its Biblical foundations, including a proper understanding of Biblical government, and

(3) family becomes again the center of education, both religious and otherwise.  

Only so will a population be raised up which will discipline civil government with its enormous coercive power to be the servant again of the people (see The Constitutional Buck Stops Here - at We, the People).  Only a people with a secure moral and spiritual unity can hold their ground against the ever-present erosion of liberty by the forces of centralization of government. 

       Government is, above all else, a spiritual problem.    

7. Consent of the Governed

Some in the discussion have been upholding, if I understand them correctly, an interpretation of "consent of the governed" which others have challenged, namely that "consent of the governed" is the supreme principle by which legitimacy is to be discerned and the source from which (or maybe through which) it flows. 

But, "...deriving their just powers from the consent of the governed..." cannot be read in the Declaration of Independence preamble as the final word on legitimacy of government.  The history of legitimacy shows that God has granted at least a partial legitimacy to governments which allowed participation of the governed only by their obedience.  God appears content to work with what He has -- often recalcitrant human material.  But the steady tug of His tough love draws us on into a deeper and deeper ability and willingness to do it His way -- the only way of real and substantial freedom which does not end up destroying itself. 

Furthermore, the governed are not infallible interpreters of the will of God, even though they may be the most likely to be correct over time.  When the governed are themselves clearly in defiance of the will of God, if the governed should approve the killing of persons without due process, as with abortion, then other aspects of government must intercede to correct the matter. 

The final test of whether a government has gone out of order is its coinciding with the law and grace of God, not only whether the governed have consented to the acts of their governors.  It is not only the people in their capacity as "the governed" which are "to alter or to abolish..., and to institute new Government".  When the people "as the governed", the people as voters, institute destructive government, then We, the People in any of our capacities must resist those who are eroding the principles by which God has ordained us to be governed. 

God took the divine right of rulership from monarchs and oligarchs, and gave it to We, the People.  But when the people themselves clearly deny what God has given to others, then they lose their authority under God, and others must remedy the situation.  

How can we do that without unraveling the whole system?  

8. Top-Down or Bottom-Up?

Some defending the state approach have pointed to some of the best ways for the federal government to deal with the matter, by monitoring the states for compliance in giving their citizens a republican form of government including the appropriate unalienable rights, that is, the form mandated by the Declaration of Independence, and to which the Constitution points. 

For example, Congress could deny vote, voice, or seat in Congress to those states which violate the principle until they come into compliance.  Economic sanctions might be applied.  The Northwest Ordinance has requirements for state admission, including a republican government, which should be among those monitored. 

Those advocating federal intervention, no doubt, agree with these solutions, but, in some cases, want to go further, sending federal marshals to make arrests. 

Such intervention could be appropriate only when all other means had failed, when a state openly refused to comply.  But at that point of confrontation, the national guard would more likely be needed.  It is not clear to this writer just what such an intervention could accomplish in terms of enforcing state legislation.  It would appear to be a case of making the situation painful enough for state leaders that either they complied, or enabling cooperative citizens of the state to take the reins of government and produce compliance. 

In any case, such federal intervention could not itself be a long-term solution.  The federal government cannot reasonably occupy a state forever.  The long term solution must come from the people who themselves are committed to the Biblical/republican form of government as given in the Declaration and Constitution.  That is necessarily so if America is to continue with its grand experiment of "consent of the governed".  

When there comes an intractable confrontation between those representing the federal level who favor a republican government with its unalienable rights for the unborn, and those in the state who, by allowing abortion or any other violation of personal rights and freedoms, do not, it might sooner or later come to a contest of arms. 

For the federal government to successfully carry out such a role, it must have shed its current image of centralization, its captivity to globalist notions, and itself be supportive of legitimate "states rights".  It must have a realistic reputation for representing We, the People as a whole, not of having subjugated the people, a reputation for supporting the buffering and authority-dispersing communities (states, counties, cities, families, churches, etc.) which protect the citizen from the overpowering weight of the central government.  In all of this, overseeing the legitimate limitation of government is the task primarily of We, the People, under God.   

So the movement must logically be both bottom-up as well as top-down.  Both ends have their responsibility.  The top-down movement will become necessary only when We, the People, have already failed at understanding and maintaining a republican government.  But We, the People, as electors of our rulers, taken as a whole are in fact the Primary Officers of the State.  So the top is ironically at the bottom, and the apparent conflict between top-down and bottom-up dissolves as We, the People hold our spiritual ground. 

That bit of irony is why those at the top can be made the servants of those at the bottom. 

 

[I welcome responses which might help improve this presentation.   E. Fox] 

Addenda  

I received the following in an email from a friend who was wrestling through in her own mind the issues of abortion.  She quoted the Constitution:

We, the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

"Who is 'our Posterity?'," she asked, "if not our children?  What is it to 'secure the blessings of Liberty...for our posterity' if we can murder our 'posterity' at will?

I had never seen a reference to this constitutional "posterity" in abortion debates. 

Because every word in a legal document is to be taken at its normal face value, and as intentionally put into the script, we must suppose that there is a constitutionally acknowledged obligation to preserve our posterity, not murder them for our convenience, or even to avoid severe hardship.  We owe our unborn children the same protection as our born children. 

As I understand such things, the Preamble is not the equivalent of statutory law, but, like the Declaration, it is the equivalent, at the least, of an "organic utterance", which indicates the context in which statutes are to be understood.  The Constitution takes our posterity very seriously.      

 My friend went on to propose that we must recognize an unalienable right of the child-yet-to-be-born to be raised by its own natural parents, and that that moral obligation falls both on society and on any two persons engaging in sexual intercourse. 

Just how to state such a principle legally needs to be worked out, but the principle appears to me to be unexceptionable, and most surely in line with the will of God.  On the other hand, it might be one of those moral principles, like love, which cannot be legally (coercively) enforced, but is nevertheless a moral principle with the sanctions of God, Church, and family behind it. 

At any rate, I replied to her -

        The act of sexual intercourse and the experiences of orgasm are not about me and my feelings, they are about, and should be intentionally directed at, relationships -- 
    (1) at the potential coming child;
    (2) at the forming of union between husband and wife such that a hospitality-space is created between them in which the child can find nurture, love, and discipline; and further,
    (3) at a space between husband and wife where hospitality can be offered to friends, neighbors, and sojourners who come to their home.  

         This is the union which makes a house a home and people a family.  The union of husband and wife is about that space, the closeness, stability, and openness of which allows others to enter.  It is about the creation of family as the bedrock of society and civilization, family made in the Image of God -- male and female become one flesh.  That space is the smithy where souls are formed, matured, and healed. 

         I once asked a person who had come for pastoral counseling whether she and her husband could express affection appropriately in front of their children.  She lit up, and said, "Oh, yes!  Whenever we give each other a hug, the kids say, 'Aw, that's corny!'  And then they all try to squeeze in between!"   I replied, "Yes, that space between two loving parents is, literally and physically, heaven on earth for the child.  

     That short conversation was a revelation from God for me, one of those defining moments in my understanding of gender, marriage, and family. 

     Here is one of those necessarily bottom-up processes.  If children were given a sex and gender education pointing to such a vision, we would have a dramatically different society, especially among Christians.  The whole nature of the Church-on-earth itself would be wonderfully different, and abortion would become almost unknown. 

There is nothing more admirable than two people
who see eye-to-eye keeping house as man and wife,
confounding their enemies and delighting their friends.

Homer, ca, 8th century BC

The first bond of society is marriage.

Cicero, 1st Century BC

See also,  The Constitutional Buck Stops Here - at We, the People
Abortion & the Declaration of Independence

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Go to: => TOP Page;   Constitution;   Abortion;   ROAD MAP

Date Posted -  10/20/2008   -   Date Last Edited - 09/15/2012