In a recent article I argued that the pro-life movement has been perusing an ineffective, if not downright counterproductive, political strategy, a criticism voiced by many other paleoconservatives. As most readers know, the South Dakota legislature recently passed a ban on almost all abortions in the State. The law passed both houses by impressive margins and was enthusiastically signed by the Governor. South Dakota’s action has been applauded by paleoconservatives, but it has been greeted with a mixed reaction by “mainstream” pro-life activists. The ban provides paleocons with an excellent opportunity to support a potentially more effective political strategy. It also presents them with a wonderful opportunity to illustrate the proper historical role of the States, the Court, and the Feds.
The abortion ban is clearly intended to provoke a court challenge that South Dakota hopes will result in the reversal of Roe vs. Wade. The legislature was likely prompted by the replacement of retired Supreme Court Justice O’Conner, who supported Roe, with Justice Alito who they hope will not.
As predicted, Planned Parenthood quickly filed suit, and the law is now on hold. What the results of a Supreme Court challenge to Roe will be is far from certain. As Prof. Stephen Presser pointed out at the October 2006 meeting of the John Randolph Club, the outcome will likely be decided by how Justice Kennedy votes. That is assuming that Chief Justice Roberts and Justice Alito vote to uphold the ban. If they do not, I suggest we hide the sharp objects from the many long suffering pro-lifers whose entire activist careers have centered on altering the makeup of the Court.
In response to the ban, Planned Parenthood collected enough signatures to put the new law before voters in a November ballot referendum. South Dakota is clearly a pro-life state as demonstrated by the large majorities by which the abortion ban passed and their willingness to be a first in the nation test case, but the fate of the referendum is uncertain. The law does not include exceptions for rape and incest. Knowing they could not win on the pro-choice issue alone, Planned Parenthood’s campaign has focused almost entirely on the lack of these exceptions and has called the law “extreme.” We await the results of the Nov. referendum. Christian conservative Bush supporters should know that he criticized the law as extreme as well because of the lack of exceptions. Thanks for the help Buddy.
The South Dakota law raises some significant questions for conservative and pro-life activists about the role and authority of States. Reportedly, several States have laws waiting to go into effect if this case results in the reversal of Roe, but why wait? In the name of State activism and further challenging the legitimacy of an obviously incorrectly decided court case, why not pass them now?
For the pro-lifers who are not yet sold on the idea of State activism, in fact some are openly hostile, the South Dakota case has caused them a dilemma. According to Christopher Check of Chronicles Magazine, some pro-life activists are enthusiastic and applaud South Dakota’s efforts as an attempt to have Roe reconsidered, but others are more cautious. The “incrementalists” are concerned that the time is not yet right. They worry that if the South Dakota law is overturned it will be a third instance (Roe andCasey being the first two) of the Supreme Court affirming a “right” to an abortion. According to the voices of caution, this could present a nearly insurmountable obstacle to reversing Roe in the future.
A problem with both mainstream pro-life positions is that they unnecessarily concede half the battle to the opposition. First, pro-life activists generally uncritically accept the erroneous and malicious doctrine of judicial review. Their obsession with Supreme Court picks plays into and perpetuates this destructive doctrine and gives the GOP a trump card to keep pro-lifers in line every four years. Debunking judicial review is beyond the scope of this article, but suffice it to say that judicial review is nowhere to be found in the Constitution. The Supreme Court rules on the case before it, and its decisions are theoretically binding on the parties involved, but nowhere does the Constitution grant to the Supreme Court the authority to “overturn” or “invalidate” State or Federal laws.
The reaction to the South Dakota ban also reveals the default mindset of many pro-life Christians and conservatives who see the solution as necessarily coming from Washington. Even the supporters of the South Dakota ban see it primarily as a vehicle to challenge Roe. Conservatives should know better. Some “conservatives” have intentionally adopted this federal mindset (i.e. neocon Bill Bennett). Unfortunately, the alternative vision, the vision most consistent with American history and authentic American conservatism, has just not occurred to the average modern pro-lifer. Helping it occur to them should be one of the primary goals of traditional and paleo conservatives.
If the Court “overturns” the South Dakota ban, a very real possibility since I put no faith in Kennedy and am not as convinced about Roberts and Alito as their supporters seem to be, then the obvious question is, “What is the next step?” (We should all routinely pray for Kennedy, Roberts, and Alito.) The answer from the mainstream federal side is, “Go home and lick our wounds and work harder to get future Supreme Court nominees who might see it our way,” of course all the while remaining in the GOP’s choke hold.
But who determined that the Supreme Court is the final arbiter of what is and is not constitutional? Certainly not the Constitution. Certainly not the Founders who conceived of the Supreme Court as the weakest branch. Why is the obvious next step not that South Dakota should immediately nullify an adverse Supreme Court decision? Paleoconservatives, especially those of the Confederate variety, know the answer. It is because the modern mainstream activists have entirely accepted (sometimes consciously, sometimes not) the “Lincolnian myth” of American history and government. Sadly, this is true of most modern Southern “conservatives” as well.
That the idea of State nullification and interposition does not even occur to them demonstrates what Dr. Donald Livingston, Professor of Philosophy at Emory University, has called a “profound lack of political imagination.” Dr. Livingston puts it this way:
We still look superstitiously to the central government as the object of all our hopes and fears. Many [most] Americans do not know their own constitutional history; they do not know the constitutional authority States have exercised and can exercise again. For over a hundred years we have been taught the ideology of the modern state in the version that Lincoln seared into the national consciousness with a writ of fire and sword.
As Dr. Livingston demonstrates beautifully, the Lincolnian “indivisible” modern state is a post-French Revolution creation, and is therefore a liberal and revolutionary idea. Christians conservatives who have embraced this fundamentally liberal concept, such as the useless afore mentioned Bennett or the generally otherwise helpful David Barton, should either rethink their position or admit to their underlying liberal assumptions. Liberalism, of which the modern state is one manifestation, is inherently hostile to traditional Christianity. Christians who try to reconcile the two in a more than limited way are on a fool’s errand.
Many federalist pro-lifers, suddenly no longer having the life of unborn babies as their chief concern, will surely cry “rule of law” and “anarchy” when State activism and nullification is suggested. (Look at the tepid or hostile response of some Christians [Jay Sekulow] to the Judge Roy Moore case in Alabama.) I will ask in reply, “How peaceful and united and orderly is a country that allows more than one million babies each year to be killed? ‘Rule of law’ and ‘anarchy’ indeed.”
Pro-lifers are among the most sincere and dedicated of the conservative foot soldiers. The South Dakota law presents paleoconservatives with an unparalleled opportunity to shake them loose from their Lincolnian presuppositions. Let’s get to work.
Published originally at EtherZone.com : republication allowed with this notice and hyperlink intact.”