AL#5 Executive Review

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The article that follows was submitted late in 2001 to the Detroit Free Press as a guest editorial to be published at the time of the Roe v. Wade anniversary in January 2002. The Free Press sat on it for six months before I finally withdrew it. My original intent was to discredit the idea that the Supreme Court has the power to overturn laws passed by Congress since this power is not mentioned in the Constitution. The Constitution actually does not define any judicial powers at all. It only defines the jurisdiction of the Court, i.e., the types of cases it may handle. However, a lawyer I occasionally consult at the American Center for Law and Justice (an organization well worth your support) suggested I contact a professor at the University of Minnesota School of Law who had done some work along the lines of what I was trying to accomplish. I won't trouble you with the details of our correspondence but Prof. Michael Stokes Paulsen (he has a web page) was kind enough to send me some very interesting materials, including a reprint of his article in the Georgetown Law Journal (Volume 83, Number 2, December 1994) entitled "The Most Dangerous Branch: Executive Power to Say What the Law Is." Some of the ideas from that article are incorporated in my editorial below.

Prof. Paulsen summarized his approach this way:

"I believe that the principle of separation-of-powers means that none of the three branches of government is required to follow the constitutional judgments of the others, if fully persuaded that those interpretations are in fact not faithful to the Constitution. By that principle, "judicial review" *is legitimate*: the courts are not bound to apply an unconstitutional law passed by Congress, just because Congress thinks it is constitutional. But by that same principle, judicial *supremacy* in constitutional interpretation is *illegitimate*. By the same reasoning that yields *Marbury v. Madison*, the President may refuse to follow, within the scope of his powers as President, a judicial decision that he believes is unsound.

I should emphasize that this view, which is the subject of the lengthy Georgetown Law Journal article enclosed, is *not* the prevailing view in the courts or among constitutional law scholars."

Prof. Paulsen went on to say that he believed a more promising approach than the "unilateral presidential action" (as he called it) that I am proposing would be to direct the Supreme Court by statute not to consider precedent (namely *Roe v. Wade*) in general or in specific categories of cases. The Congress has the power under the Constitution to do this. Those of you reading this who have the necessary legal background may be interested in contacting Prof. Paulsen to pursue some of these ideas.

Here's my proposed editorial from 2001:


Bush Should Close the Abortion Mills

by Alfred Lemmo

As Chief Executive, George W. Bush has both an obligation and all necessary authority to end this nation's twenty-nine year abortion bloodbath by shutting down the nation's abortion mills, seizing their equipment and, if necessary, revoking the medical licenses of any medi-whores who persist in prostituting their medical skills to destroy human lives.

Many will react with shock to this idea. They have been carefully conditioned to believe that the judiciary has the final say in interpreting the Constitution or is even the supreme branch of government. Nothing could be further from the truth.

The myth of judicial supremacy has been successfully perpetrated only recently by those who cannot get their often outrageous agendas (such as abortion-on-demand) past any elected body accountable to the people. The prevalence of such persons in the left-leaning national media and academia, who preach the lie over and over, is largely responsible for the current unthinking acceptance of judicial supremacy.

There is nothing in the Constitution to even suggest that the judiciary is the supreme or final arbiter of what the law is. The Constitution doesn't even define the "judicial Power," so confident were the framers that it was not dangerous, possessing neither "the purse nor the sword." These belonged to the legislative and executive branches, respectively.

The Supreme Court's original 1803 assertion of the power of judicial review in *Marbury v. Madison* never claimed judicial supremacy or exclusivity of judgment. Judicial review was simply implied because "(t)hose who apply the rule to particular cases, must of necessity expound and interpret that rule." But this is equally true of the executive branch, if not more so, since the executive also applies the laws and even the judgments of the judiciary.

Both the president and Supreme Court justices takes oaths of office to support the Constitution. Both the Fifth and Fourteenth Amendments say that no "person" may be deprived of life without due process of law. These amendments demand that the president fulfill his oath by stopping those who would destroy the lives of persons.

There is much precedent for this "executive review." Among others, Andrew Jackson and Abraham Lincoln sometimes ignored the Supreme Court's rulings. Jackson reputedly said: "Mr. (Chief Justice John) Marshall has made his decision, now let him enforce it." Jackson understood that the Court's decisions were not binding on the executive branch. This was the original understanding of the Constitution's framers who saw separation of powers as dependent upon co-equal, coordinate (not *sub*ordinate) branches of government. To them, the supremacy of any one branch was the essence of despotism. The writings of framers like Madison and Hamilton as well as Jefferson and others are consistent on this point.

In *Roe v. Wade*, the Supreme Court said: "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." Note the twin ludicrous assertions: that because the Court supposedly can not answer a key question the question is irrelevant, and the existence of life before birth is somehow a question of philosophy or theology rather than of biology, the science of life. By thus confusing the issue, the Court side-stepped the question and proceeded, in spite of its admitted (though feigned) ignorance, as though prenatal lives did not exist and therefore did not qualify as "persons" under the Constitution. With this obvious nonsense, the Court evaded acknowledging that what they were really striking down was the philosophical premise of our nation -- that human rights are intrinsic with human lives -- a premise described in the Declaration of Independence as a truth we hold self-evident. They turned back the clock to when human rights were granted or denied by the powerful based on criteria of their choice, and gave us a nation based on might makes right, the philosophy of all oppression.

Historically, the legal removal of some target population from the protected class of "persons" has been a key step toward so many abuses that United Nations documents typically speak of "everyone" ("tout le monde" - literally "all the world" - in the original French) to avoid any such dangerous distinctions. It was precisely this distinction that the Supreme Court made in *Roe v. Wade* by a transparent act of subterfuge. A decision so completely lacking in truth, justice, knowledge, reason and principle deserves to be simply ignored.

In a more recent example of the "personhood" mind game, Americans were appalled by the pious pronouncements of Osama bin Laden, who treated the lives of our people as having no significance. But our own Osamas are legion. They can mouth platitudes about human rights and freedoms while ignoring or even defending the daily live dismemberment of thousands of prenatal children. Like bin Laden (or the Supreme Court), they have accomplished the "mental abortion" of separating a target population into some subhuman category of non-persons such that anything can be done to it. Just listen to them. They speak of "potential" life versus children "already here" as though lives before birth do not exist. The "mental abortion" can be done on the basis of prenatal developmental characteristics, race, religion, social class, language group or other criteria, but its ultimate result is just as deadly.

Unrestricted legal abortion has been a cultural disaster and particularly devastating to women who know instinctively and from experience what abortion is and does. The consequences of our legally enshrined disrespect for life continue to unfold in new nightmares like cloning. It will not stop until the killing of our most innocent and helpless persons is ended.

Waiting for a test case after a hoped for change in the Supreme Court's composition makes a mockery of the pro-life cause. Left-wing Senators are already scheming to further corrupt the judiciary by assuring the confirmation of only more dictatorial jurists, knowing that the "fundamental right" contrived in *Roe v. Wade* hangs by a thread. The President should pre-empt them by restoring our nation's moral health on his own authority. His access to the "bully pulpit" will be critical to exposing decades of disinformation dispensed by the well-funded abortion lobby, as well as the myth of judicial supremacy.

[End of editorial]

(I should note that the left-wing Senators have already struck, blocking the nominations of two of President Bush's highly qualified judicial nominees only because they had made some rulings that were pro-life. That's why it's important to keep homicidal lunatics like Chucky Schumer of New York and Patrick Leahy of Vermont (members of the U.S. Senate Judiciary Committee) out of our public offices.)

I would have liked to have had some more space in the editorial to provide additional supporting quotations from the nation's founders and examples of the actions of Jackson and Lincoln, among other things.

It's something of a mystery to me why Prof. Paulsen would write a detailed article defending executive power and then retreat to a position that still essentially relies on a change in the membership of the Supreme Court. He did not respond to follow-up efforts to communicate with him. Perhaps he thought I was too radical or unrealistic. The approach I am advocating *is* unrealistic at this time but I believe the circumstances that make it unrealistic can be changed.

I had a brief discussion of the idea of presidential action to close the abortion mills with James Bopp, the chief counsel of the National Right to Life Committee, at the convention in June. At first he was dead set against it until I further explained that this action would require considerable effort to sell the idea as noted in the last sentence of the editorial. Decades of far left-wing cultural hegemony will not be overcome overnight. That's where you come in. He gave his blessing to the idea of talking this up. In fact, it could be detrimental to the candidacies of pro-life political leaders for them to take the lead on this, given the state of moral confusion and degeneracy in our country today.

In my view the judiciary is totally out of control and needs to be reined in. We the people have lost control or our law-making process when the judiciary can dictate to us what our laws ought to be. Even laws already on the books, such as the minimally protective laws on parental notification, waiting periods and informed consent on abortion that we have fought so hard to enact, stand in jeopardy if any judge can rule against them when a suitable test case arises. We will see more such dictatorial judges appointed if the likes of Jennifer Granholm (Michigan Democratic gubernatorial candidate) are elected to executive positions.

An article in a recent issue of American Life League's publication *Celebrate Life* noted that the Constitution specifically says that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (Article I, Section 1) That means that the judiciary has no such powers. (Like, what part of ALL don't they understand?)

A Michigan Supreme Court justice, speaking before the Dearborn/Dearborn Heights Republican Club, noted that the controversy over physician-assisted suicide has been far less contentious than that over abortion because the advocates of that misguided idea have stayed within the democratic process, unlike those who have brought the bloodbath of abortion upon us by judicial dictate. I will deal with physician-assisted suicide in a future email.



I suppose I could ramble on a bit more but I've made most of the major points I wanted to. Thanks for reading this.

Al Lemmo

Dearborn, Michigan

October, 2002