This is a follow-up to the article, Personhood Florida and Abortion Abolition. In the article, I explained that Personhood seeks to ignore Roe v. Wade — not reverse it; Personhood stands for the doctrine of nullification; the very term “Personhood” represents the imago Dei; the biblical “right to life” is God-given; and (despite the best efforts to end abortion through political tactics) there is no such thing as a “magic bullet.”
That article is an application of a series of articles that are contained in the short book I wrote called, The United States of America 2.0 – The Great Reset. You can read the chapters at the Related Articles links.
The following article is by the director of Personhood Alliance’s Alaska affiliate, Christopher Kurka, who develops this idea more. I pray that it is the beginning of an awakening in the pro-life movement. Roe is not law and the states under the U.S. Constitution have both the right and the responsibility to defy federal tyranny.
THE MYTH OF JUDICIAL SUPREMACY AND THE NULLIFICATION OF FEDERAL TYRANNY
By Christopher Kurka, Executive Director, Alaska Right to Life
“And you will know the truth, and the truth will set you free” (John 8:32).
The Narnian Dwarfs, forever to think that they are stuck in a stable.
In C.S. Lewis’s The Last Battle (the final book in the Chronicles of Narnia series) there is a scene that perfectly illustrates the enslaving nature and power that a lie has over those who believe it. At the conclusion of Narnia’s last battle, Eustace, Jill, King Tirian, and the rest of the surviving Narnians are thrown into a stable by the invading Calormene army. Unbeknownst to all involved, the doorway into the stable is in fact a portal into Aslan’s great country. Almost immediately upon entering the stable, the weary and bedraggled soldiers know they are in an extraordinary place. Aslan’s country is magnificent in every way, from the breathtaking scenery to the smells and tastes of its bountiful food. It is a refreshing, exhilarating, and invigorating place. Yet, while some of the Narnians rejoice in their newfound home, the Dwarfs are held captive in a prison of their minds. They scoff at the Narnians’ excitement. They spit Aslan’s delicacies out of their mouths, believing that they are in a stable munching straw like the imaginary animals around them. When Aslan, in all his glorious presence, comes near, the Dwarfs refuse to recognize him for who he is. They explain that the trembling earth is but a machine used by “the gang at the other end of the stable.”
Amidst a feast of delicious food and fine wine, the Dwarfs continually scoff, held captive by the surroundings they believe they are in. The reality they could experience is more than they can comprehend, so they choose to remain in the prison of their own minds. “The Dwarfs are for the Dwarfs!” they stubbornly declare, as they despise the very truth that would set them free.
THE DECEIT THAT CHAINS US DOWN
In John 8:32, Jesus says, “and you will know the truth, and the truth will set you free.” This begs the question: If the truth sets us free, then what happens when we believe a lie? Just like the self-absorbed Dwarfs, we are held captive. Satan holds us captive and enslaves us simply by convincing us to believe his lies. This is his primary means of keeping Christians ineffective at following the will of God and advancing His kingdom on Earth. This is a profound truth that applies to all aspects of our Christian walk, but this chapter focuses on a particularly insidious deceit that keeps the pro-life movement captive, misdirected, ineffective, and demoralized.
ROE V. WADE: THE LAW OF THE LAND?
The lie goes like this: In order to end legal abortion, we must elect a Republican president and a Republican majority in the US Senate. Then, over time, we can appoint “pro-life” justices to the Supreme Court of the United States (SCOTUS), who will someday overturn Roe v. Wade — the infamous decision that legalized abortion in 1973.
Let us divide this lie into two beliefs that underlie it.
First is the premise that Republican judicial appointments will be pro-life and thus, will vote to overturn Roe. Yet, time and time again, the pro-life community pours out blood, sweat, and tears to get Republicans elected, only to be disappointed. While a Democrat regime is far less likely to appoint pro-life justices, there is no guarantee that a Republican regime will. The fact is: Six of nine justices on the court that decided Roe (7-2) were Republican appointees and since Roe, 10 of the 14 new justices on the court are Republican appointees.
Second is the premise that SCOTUS is the final arbiter of the Constitution and therefore, we must obey its will. This is one of the most pernicious lies about our republican form of government. If we take this belief to its logical conclusion, SCOTUS has total control and power. Congress and the President—indeed, all laws and decisions—must meet SCOTUS’s approval. There is nothing beyond its reach. We see this often in the reactions of pro-life organizations’ legal counsel. Even when faced with the most outrageous SCOTUS decisions, counsels say we must fall in line like good Americans, advocating for the rule of law. This is much like the Narnian Dwarfs, except it is “the Lawyers are for the Lawyers!”
In the initial phase of the modern pro-life movement, there were efforts to pass a Human Life Amendment to the Constitution. The movement has largely abandoned this strategy, due to ongoing disagreements over whether to include exceptions. It would be prudent to amend the Constitution to protect the preborn, but not because we need an amendment to overrule SCOTUS. A constitutional amendment would provide preborn children equal protection under the law in all states and would be extremely difficult to reverse. However, under our current jurisprudence, even a constitutional amendment would be under threat from a SCOTUS opinion. If SCOTUS is the sole and final interpreter of the Constitution, then what would stop the court from reinterpreting any amendment to fit its political agenda?
Here in Alaska this is not just theory. In 1998, Alaskans approved an amendment to the state constitution that recognized marriage between one man and one woman. However, in 2005, the Alaska Supreme Court ruled that the public employee benefits provided for married couples must be provided for same-sex couples because they were equal to married couples. This decision essentially thwarted the marriage amendment, and several subsequent decisions broadened the effect.
When discussing the problem of our over-powerful judiciary, I often hear that the framers of our Constitution greatly erred when they created the parameters for the judiciary. But what does this say about our view of the founding fathers and their “brilliant system of checks and balances” as so many call it? Certainly, the founders were sinful human beings and prone, like any, to make mistakes. But do we honestly believe that they gave a few unelected attorneys carte blanche power over our country? I think not. Where, then, did this dangerous idea of judicial supremacy emerge?
MARBURY V. MADISON: THE REACH FOR POWER
It started with the Marbury v. Madison decision in 1803, in which SCOTUS declared themselves the right to judicial review. This declaration meant that SCOTUS had power to review any action or inaction the President or Congress took, deem it in violation of the Constitution, and render it null and void. Let us pause for a moment to consider the incredible arrogance of such a declaration. This is akin to the banker in a Monopoly® game declaring, “Hey guys, new rule. Since I am running the bank, I get to use the bank’s cash to help me win.” We certainly do not tolerate such attempts at self-appointed power in Monopoly. Why do we tolerate it in the halls of government? Thomas Jefferson’s response to the Marbury decision was prophetic and instructive:
You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps… Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
This brings us to the heart of the matter. The reason the judiciary has usurped so much power is because the executive and legislative branches have acquiesced to the demands of a runaway court. It is often easier for politicians to patronize pro-life voters than to do what is necessary and risk the wrath of the abortion lobby. But how far will they take their blind obedience to court opinion?
Suppose SCOTUS ruled that women are non-persons and can be bought, sold, and treated as property? What would the remedy be for such an injustice? Congress could impeach the offending justices, but that would not undo the ruling. Impeachment, appointment of new justices, and Senate confirmation of those justices would take time. The ruling would stand while the process was underway. In the meantime, would state governors, sheriffs, and police officers enforce it? Of course not. Yet our modern American jurisprudence dictates that the executive branch is duty bound to enforce such a miscarriage of justice, simply because it is the opinion of SCOTUS. Such an outrageous decision is not mere theory. SCOTUS has a record of insidious opinions.
DRED SCOTT V. SANDFORD: THE POWER TO DENY RIGHTS
SCOTUS’ infamous Dred Scott v. Sandford decision in 1857 denied Americans of African descent their rights, creating a second class of human beings in the eyes of the law. The decision has never been overturned by the court. Dred Scott was just the beginning. Many other notorious SCOTUS decisions denied constitutionally protected rights to certain people.
Buck v. Bell (1927)
In the court’s eugenic Buck v. Bell decision, it sanctioned the forced sterilization of institutionalized people who were deemed “imbeciles,” in order to protect the social welfare of the State. Buck v. Bell tested Virginia’s Racial Integrity Act of 1924, a sterilization law built on a model developed by Harry Laughlin, a leader in the American Eugenics Movement.
Dr. Albert Sidney Priddy initiated the case when he petitioned to forcibly sterilize Carrie Buck, an 18-year-old patient at the Virginia State Colony of Epileptics and Feeble Minded. Dr. Priddy claimed Carrie had a mental age of nine and therefore, posed a genetic threat to society. According to him, Buck’s 52-year-old mother had a mental age of eight and a record of prostitution, having had three children without good knowledge of their parentage. Carrie, one of these children, had been adopted. Carrie was promiscuous, according to Dr. Priddy, evidenced by her giving birth to an illegitimate child. Carrie’s family committed her to Dr. Priddy’s institution because she was allegedly “epileptic, feeble-minded, and morally delinquent.” In reality, Carrie’s child had been conceived as a result of rape by her adopted mother’s nephew, and her family had sent her to the institution to cover up the crime.
Echoing with Justice Holmes’ declaration that “three generations of imbeciles are enough,” the court’s decision opened the flood gates for other states to enact their own eugenic laws. Many of these laws were used against the Black population, particularly in the South in the 1950s, where forced sterilizations were initiated to control the population of welfare recipients, who were predominantly Black. Virginia’s Racial Integrity Act also became the model for Adolf Hitler’s Law for the Prevention of Hereditarily Diseased Offspring. During the Nuremberg trials, Nazi doctors explicitly cited Justice Holmes’ opinion in Buck v. Bell as a defense for forced sterilizations.
It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.
It is important to note that, like Dred Scott, the Buck v. Bell decision was never overturned by the court.
Korematsu v. United States (1944)
The internment of Japanese Americans during World War II is another black mark on American history. In Korematsu v. United States, SCOTUS permitted the federal government to strip the rights of Fred Korematsu, a natural-born American citizen, simply because of his Japanese ancestry. This decision was in direct violation of due process in the 5th Amendment. The Korematsu decision was also never overturned. Like the Buck v. Bell and Dred Scott decisions, Korematsu is standing case law. But these cases are ignored and not enforced because they are some of the most embarrassing, malevolent decisions in the court’s repertoire of egregious injustices.
Of course, the most egregious SCOTUS decision in modern history by virtue of direct consequence is Roe v. Wade. This decision has ushered in the genocide of nearly 60 million preborn Americans. Yet the political class tells us that, “Roe v. Wade is the law of the land.” But history begs the question: Why should we treat Roe any differently than Dred Scott, Buck, or Korematsu? If other deplorable SCOTUS decisions can be ignored, why not something as horrific as Roe?
SEPARATION OF POWERS AND A CHECK ON JUDICIAL TYRANNY
Most of us are familiar with American system of checks and balances put in place to prevent any one branch of government from taking control. The President cannot seize complete power because Congress has the law-making authority and holds the purse strings. Congress cannot assume total authority because the President controls the administration and has enforcement power. But what of the judicial branch? What are the checks on the power of an out-of-control Supreme Court? Let us examine some of them.
First, let us look at court jurisdiction. The second clause in Article III, Section II of the Constitution reads:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make [emphasis added].
In plain language, this means Congress can tell SCOTUS what kind of cases they can and cannot hear. If Republicans in Congress were serious, they could vote to remove abortion from the jurisdiction of the courts tomorrow, essentially nullifying Roe. Congress could pass a bill granting legal protection to the preborn with a clause that removes the bill from the jurisdiction of the federal courts. Of course, they would have to be serious about ending the killing of the preborn first. Congress has already exercised its power in this way. To prevent environmental lawsuits from blocking the Trans-Alaska Pipeline Project, Congress limited court jurisdiction in the Trans-Alaska Pipeline Authorization Act of 1973.
Let us look at what Alexander Hamilton penned in Federalist Paper 78 regarding the separation of powers:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments [emphasis added].
In Federalist Paper 81, Hamilton gives us guidance regarding actions the government can take when the courts overstep their limited authority:
It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments [emphasis added].
Hamilton twice references the most obvious check on a judiciary that usurps the law-making authority of Congress: The President can simply not enforce the court’s opinions. In fact, nothing in the Constitution requires a president, governor, or state or federal agency to enforce a SCOTUS opinion.
The President’s oath of office is to “preserve, protect and defend the Constitution of the United States” not “protect and defend the Constitution as interpreted by the Supreme Court.” If the President believes an action of SCOTUS or Congress violates the Constitution, he has a duty to not enforce it. Indeed, every officer or agent of federal, state, or local government—from the President all the way down to the local police officer — has a duty to defend the Constitution and protect the rights of the people in this way. When politicians refuse to stand in the way of evil and act in defense of the innocent within the power, scope, and duty of their office, they are, in fact (knowingly or not), colluding with the evil actions of the errant branch of government.
NULLIFICATION AND INTERPOSITION: A REMEDY TO TYRANNY
Here is where the principles of nullification and interposition become a remedy. The case for nullification of federal overreach by state governments is more thoroughly and scholarly laid out elsewhere, but here, I will simply give a brief description and a few prime examples.
In this context, nullification occurs when a state declares the edicts of the federal government (be they law or court opinion) to be null and void by virtue of their violation of the Constitution.
Interposition happens when an officer or agent of government places him or herself between an aggressor and their intended victim in order to stop an evil act from occurring. This can occur in the context of nullification, where state or local law enforcement would interpose between the people and federal agents attempting to enforce the unconstitutional edict in question. Interposition can also occur in the context of the Christian doctrine of the lesser magistrate or the related doctrine of subsidiarity (discussed later in this chapter). Let us look at some examples of nullification.
Virginia and Kentucky Resolutions
The most famous, often-cited examples of state nullification in our nation’s history are the Virginia and Kentucky resolutions of 1798. In 1798, President John Adams signed into law the Alien Act and the Sedition Act. The Sedition Act essentially made it a federal crime to criticize the President or federal government. In response, the Virginia and Kentucky legislatures passed resolutions declaring the acts “unconstitutional” and “altogether void, and of no force.” President Woodrow Wilson signed a second Sedition Act into law in 1918. , SCOTUS upheld the Sedition Act in Abrams v. United States, but Congress repealed the act in 1920.
Personal Liberty Laws
In response to the Fugitive Slave Acts of 1793 and 1850, numerous state legislatures in the North passed personal liberty laws. These laws served to thwart slave owners and federal agents in their attempts to recapture slaves that had escaped into northern states.
Firearms Freedom Act
With federal firearms regulations encroaching on the 2nd Amendment, particularly during the Obama administration, 11 states passed a Firearms Freedom Act, nullifying federal regulations. Between 2008 and 2014, more than three-quarters of U.S. states proposed nullification of federal firearms laws.
The State Sovereignty Movement
According to a National Conference of State Legislatures analysis, overreaching federal mandates are igniting a surge in state-level nullification efforts. For example, states have proposed and enacted measures to refuse to implement the Real ID Act and grant citizens opt-out rights for the Affordable Care Act. The uprising of this 10th Amendment-based movement is due largely to the Internet, which has given conservatives a voice to push back against the federal government and return important issues to the states. But nullification is not just a conservative strategy.
THE LEFT’S EMBRACE OF NULLIFICATION
The Left has demonstrated some of the most effective nullification efforts in their push for sanctuary cities, which, according to the Center for Immigration Studies, now number in the hundreds. Progressives have also nullified federal marijuana laws in 28 states through legislative measures or direct-ballot initiatives that directly violate the federal ban on medicinal and recreational marijuana use. And yet, no one seems to care. The discussion of proposed legislation always focuses on the efficacy of the proposed changes in state regulation, not on the violation of federal law.
RULE OF LAW
Some argue that we are a nation of laws, and as such, the rule of law must be preserved. In this argument, nullification equates to lawless anarchy, and the Civil War has already answered the question of states’ rights. I submit to you that any law that sanctions the execution of 60 million innocent Americans is no law at all! How can anarchy be a concern when the abortion holocaust that we preside over is the greatest genocide that humanity has ever perpetrated upon itself in the history of the world? Like the politicians and law enforcement of today, the Nazi war criminals at the Nuremburg trials claimed that they were “only following orders.” We did not tolerate this plea then, and we certainly should not tolerate it now.
THE DOCTRINES OF THE LESSER MAGISTRATE AND SUBSIDIARITY
The truth is that, even if Roe was “the law of the land” and nullification was not a legitimate option, our state and local civil governments still have a duty to interpose on behalf of the preborn. This is because we all answer to a higher authority. Scripture makes it clear that we are to obey the lawful authority placed over us, but when there is conflict with God’s commands, “We ought to obey God rather than men.” This declaration, as well as the duty to protect the innocent, are the foundation of the Christian doctrine of the lesser magistrate. Although this doctrine is thoroughly defined and assessed elsewhere, it can be simply defined as follows. When a higher government authority makes an unjust and/or immoral law or decree that violates God’s law, the lower ranking government authority has a right and duty to refuse to comply with the superior authority. The lesser authority even has the right and obligation to actively resist the superior authority and to interpose on behalf of the higher authorities’ intended victims. The doctrine often goes hand in hand with nullification and interposition. In many cases, this doctrine is easier to initiate at the local level, through a pro-life county sheriff or mayor.
One could also appeal to the doctrine of subsidiarity in defiance of a tyrant and in interposition for the oppressed. Pope Pius XI outlined subsidiarity in his encyclical, Quadragesimo Anno:
[I]t is an injustice and at the same time a grave civil evil and disturbance of right order, to transfer to the larger and higher collectivity functions which can be performed and provided for by lesser and subordinate bodies. Inasmuch as every social activity should, by its very nature, prove a help to members of the body social, it should never destroy or absorb them.
Subsidiarity is related to, but distinct from, the doctrine of the lesser magistrate, in that subsidiarity goes further. It holds that certain types of actions wrought by a higher political order upon a lower order may possibly be unjust (and thus, subject to disobedience by the lesser magistrate), but it also presumes that any interference with the internal life of a lower order must necessarily be unjust, unless certain exceptions are met (for example, support in the case of need or common good).
CONCLUSION
Scripture tells us we must be wary of the lies meant to hold us captive:
“See to it that no one takes you captive by philosophy and empty deceit, according to human tradition, according to the elemental spirits of the world, and not according to Christ” (Colossians 2:18).
“Take no part in the unfruitful works of darkness, but instead expose them” (Ephesians 5:11).
It is in this spirit that I propose the following legal strategy to achieve equal protection for the preborn:
- Ignore the “lawyers that are for the lawyers.” Work with ethical attorneys that do not prostrate themselves in reverence before the Supreme Court.
- Enact meaningful Personhood legislation at the state level using the confrontational model provided in another chapter in this book: “Political Failure and the Path to Victory.”
- Get governors who, along with the backing of their legislatures, will enforce the Personhood legislation in defiance of the federal government.
- Work toward a federal constitutional amendment to protect the preborn in all states and prevent future pendulum swings that would likely decriminalize abortion.
Christopher Kurka has spent his life in Alaska, pouring his energies into political efforts in the state since a young teenager. He joined the board of Alaska Right to Life in 2006, serving as Vice President and Treasurer before becoming Executive Director in 2013. Christopher served on the board of the National Right to Life Committee for 4 years before leaving to pursue more principled means of ending abortion. He now sits on the board of National Personhood Alliance and is a member of the Foundation for Applied Conservative Leadership. Christopher’s passion is to establish justice for the preborn and see God’s people raised up to call the pro-life movement to a new standard. Christopher lives in Palmer, Alaska with his wife, Haylie, and their two sons, Justice and Samuel.
