NOT HER CONGRESSMAN. NOT HER STATE REPRESENTATIVE. BUT THE WOMAN HERSELF. TO DECIDE ACCORDING TO HER CONSCIENCE AND THE VALUES BY WHICH SHE GUIDES HER LIFE. THAT, SENATOR, IS THE POSITION OF THE TENS OF THOUSANDS OF MEMBERS OF B'NAI B'RITH WOMEN. WE WOULD EXPECT THIS CHAMBER TO WORK TO TELLING US WE MUST SEEK THEM INSTEAD AT EACH OF THE 50 STATE LEGISLATURES. I read your speech with which you introduced S.J. Res.110 Please permit me to make a few remarks. I make them on the In that case, the legislative power with respect to abortion is in the States and can legally be taken from them only by a constitutional amendment in accordance with Article V of the Constitution, any pronouncements of the Supreme Court notwithstanding. I am sure, you will admit that the Constitution has not given the Supreme Court the authority to amend it. Congress has now legislative authority with respect to abortion only over the District of Columbia and the federal enclaves. Therefore you would need a constitutional amendment to establish congressional authority to legislate with respect to abortion nationwide. But you would not need a constitutional amendment to counteract a Supreme Court decision. The Eleventh Amendment was not necessary to overrule a Supreme Court decision, but a constitutional provision. Article III, Sec.2, clause 1 provided originally that the judicial power of the United States should extend "to controversies ... between a State and Citizens of another State ...". Obviously, this could only be changed by a constitutional amendment, which was done by the Eleventh Amendment. Similarly, the Fourteenth Amendment was not proposed to counteract the Dred Scott decision. In Dred Scott v. Sanford the Supreme Court said, among many other things, that Negroes descended from African slaves could never become citizens of the United States because they had not be included in the Declaration of Independence nor in the term "citizen" as used in the U.S. Constitution. The 39th Congress obviously did not consider itself bound by this pronouncement, because it provided in the first sentence of the Civil Rights Bill of 1866: "That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." The Civil Rights Bill of1866 was considered to be unconstitutional, not because it conflicted with the Dred Scott decision, but because every subject embraced therein belonged to the powers retained by the States. The Fourteenth Amendment was intended to protect the Civil Rights Bill. The civil rights intended to be protected by the Fourteenth Amendment were those commonly understood to be the privileges and immunities under Article IV, Section 2 and enumerated in the Civil Rights bill of 1866, namely the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, to the full protection of all laws and proceedings for the security of person and property, the right to equal punishment, pains and penalties. The first version of the Fourteenth Amendment was designed to give Congress power to legislate directly for the States with respect to those civil rights, but it did not pass. The final version did not give Congress new legislative power. It merely prohibited the States from denying certain richts. Consequently, the Supreme Court originally held that the only obligation of the United States is to see that the States do not deny such rights. "The power of the national government is limited to the enforcement of this guaranty." United States v. Cruikshank, 92 U.S.542, 555 (1875). I know, of course, that later the Supreme Court resurrected the first rejected version of the Fourteenth Amendment, but this is not what Congress and the States accepted. Finally, the citizenshipclause of the Fourteenth Amendment took from the States their power to determine who should be a citizen by birth. Before that, only the power of naturalization had been taken from them by the Constitution. One thing is certain: at the time of the civil war, the constitutional status of a Supreme Court decision was still in effect, namely that it could bind only the parties to a suit as to the object of that suit. case - In 1858, it was Stephen A. Douglas who took the position that every pronouncement made by the Supreme Court in the Dred Scott that the Constitution did not permit Negroes to become U.S. citizens nor Congress to outlaw slavery in a territory was binding on the entire country for the future because the Supreme Court was the ultimate arbiter of all constitutional questions. - Lincoln called this "an astonisher in legal history;" "a new wonder of the world." He correctly saw that the only decision the Supreme Court had made in the Dred Scott case (as opposed to dicta) was that Scott was still a slave. This, Lincoln was willing to respect, but nothing else the Court had said about the Constitution. Lincoln made the time honored distinction between a court decision and a generally binding law. He considered the matter of such importance that he found it necessary to warn in his First Inaugural Address that if the policy of government is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers. I described this piece of American history in the Supplement to my testimony of June 22, 1981, before your Subcommittee on the Constitution. I deeply regret that I did not read it, instead of simply submitting it for the record. I tried to show, that to attribute to a Supreme Court decision the character of the supreme law of the land, which can be changed only by the Supreme Court itself or by a constitutional amendment, is absolutely incompatible with the constitutional plan which is based on the principles of sovereignty and self-government of the people. Some people who belong to groups whom I advise on the Constitution have expressed surprise that you said in your speech: "I recognize, however, that under our structure of Government This sounds as if you conceded that the Supreme Court has the right However, under that theory, the Supreme Court has treated the Constitution as a cover up to give constitutional respectability to its decisions by which it acted against the Constitution and dictated to the Nation the laws it is permitted to have and the policy it may adopt. No matter how clear a constitutional or statutory provision may have been, the Supreme Court has found some excuse to swipe it aside in order to achieve a desired result. What do you think, the Supreme Court will do to your proposed abortion amendment? It says clearly enough that "a right to abortion is not secured by this Constitution." But the Supreme Court will have no more qualms to chose between a written Constitution and its own fabricated constitution than it has shown now, because any one who can read English and knows what words mean, must come to the conclusion that there is no right to abortion anywhere in the Constitution. Yet, the Supreme Court insists that there is a constitutional right to abortion in the due process clause of the Fourteenth Amendment. Perhaps you might have been able to convince your senatorial colleagues of the impossibility of the Supreme Court's abortion holdings with the Constitution by explaining to them the true constitutional meaning of the due process clause, namely that no person may be sentenced to death (deprived of life), to imprisonment (deprived of liberty) or to forfeiture of property (deprived of property) without first having been given access to a proof procedure, today called trial. You could safely have quoted from my book, "The History and Meaning of the Fourteenth Amendment," (pp. 125-149), which you have. It is so thoroughly documented that no one can prove it wrong without playing somersault with the English language and with history. I am convinced that there can be no real reform unless the Congress has the courage to free the Nation from this anti-constitutional, antidemocratic dictatorship of the federal courts. The Constitution has given Congress the power to do that by having given it full power over the entire jurisdiction of the lower federal courts and over the entire appellate jurisdiction of the Supreme Court. Congress could take the first step back to the real Constitution by enacting legislation to prevent the federal courts from taking jurisdiction in cases relating to abortion, busing and school-prayers. I know that in the hearings before your subcomittee on the Constitution and that of Rep. Kastenmeier in the House several witnesses have taken the rather strange position that it may be unconstitutional for Congress to make use of a power given it by the Constitution. It has, for instance, been argued that the Congress may not so restrict the remedial powers of the Supreme Court as to prevent it from remedying a constitutional violation. Please let me explain the fallacy of such an argument with respect to court ordered busing for racial reasons. In these cases, federal courts had declared that their equity powers authorized them to order busing for the purpose/racial desegregation of the schools. In the Supreme Court, the school authorities had argued that the equity powers of the federal courts had been limited by Title IV of the Civil Rights Act of 1964 where Congress had clearly prohibited the use of busing for the purpose of achieving racial balance. The Supreme Court brushed this aside by declaring, "there is nothing in the Act that provides us material assistance in answering the question of remedy for state imposed violation of Brown I." But as if to justify the Court's unprecedented interference with the schools, the Supreme Court found it necessary to explain that this remedial power "may be exercised only on the basis of a constitutional violation." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S.1, 16, 18 (1971). However, the constitutional violation was committed, not by the school authorities, but by the U.S. Supreme Court by illegally extending federal jurisdiction over the schools of the States over which the Constitution had granted no federal judicial power. But let us assume for the sake of argument that there was a violation of the Fourteenth Amendment, as the Supreme Court said. Then Section 5 of the Fourteenth Amendment empowered the Congress, not the Supreme Court, "to enforce, by appropriate legislation, the provisions of this article," meaning of the Fourteenth Amendment. Congress had gone along with the Supreme Court's Brown decision and, in the Civil Rights Act of 1964, had provided grants for assistance in dealing with problems incident to desegregation, but it clearly prohibited busing in order to achieve racial balance. The Supreme Court simply disregarded the Constitution as well as clear congressional legislation. I must apologize for the length of this letter, because I know that you are very busy. However, you know that these are matters which are important to a majority of the American people, and therefore you will understand why I wrote it. I wish I had an opportunity to talk with you from time to time. PREPARED STATEMENT BY CONSTANCE STREET, UNITED CHURCH OF CHRIST The Office for Church in Society, an instrumentality of the United Church of Christ in its capacity to identify, analyze and respond to emerging social issues of special importance to the denomination, is submitting the following statement in opposition to any constitutional amendment on abortion that would overturn the 1973 Supreme Court decision of Roe v. Wade. The several parts of the statement include a description of how the United Church of Christ establishes its social policy; various policy statements on freedom of choice in abortion adopted by General Synods of the United Church of Christ over the years; examples of activities of various other instrumentalities, agencies, and conferences of the UCC that confirm the commitment of the church to maintain a national policy of freedom of choice position on abortion; and finally, an exploration of other aspects of this denomination's social ministry and the implications of such concerns for the current debate on abortion. I. SOCIAL POLICY-MAKING IN THE UNITED CHURCH OF CHRIST Since coming into being as a denomination in 1957, the United Church of Christ has developed a program and policy on a wide variety of concerns. The United Church of Christ is a covenant church, each body within the church speaks only for itself. There are nearly 6,400 local churches in the denomination with approximately 1.7 million members. Local churches of the United Church of Christ are organized into regional bodies known as conferences. Each conference selects from its local church member ship persons to attend the General Synod which is the representative and deliberative body of the United Church of Christ. Composed of between 675 to 725 church members elected by their conferences, General Synod is the widest representative body within the UCC. More than any other body it represents the whole church, and when it speaks, it represents the best vehicle we have as a denomination for speaking with one voice. The social policy statements do not represent the views of all UCC members, nor do they bind all UCC members. But as members of a covenant church, all UCC members are expected to take these statements seriously and to consider if God is speaking to them through the statements of these various bodies. |