the Butcher and the Baby
A Criticism on the “legality” of Abortion and the Rights of the
States to Interpose Themselves Between their Citizens and Federal “Law”
The pro-life movement estimates that 4000 children each day are either
poisoned or butchered while still in the womb. That is, in the thirty
years since Roe v. Wade, over 43 million children have been murdered
and have received no protection from their civil governments. In these
thirty years, reports indicate that the mood of the culture has
changed, with teens being more likely than just ten years ago to oppose
abortion; however, abortion is still considered a legally protected
right. Except for possibly the population control advocates, abortion
advocates are not as ideologically concerned with murdering children as
much as they are about preserving abortion as a right. Certainly, I
recognize that abortion providers have a fiscal interest in increasing
the number of abortions provided; however, if every pregnancy
resulted in a natural end (either birth or miscarriage), but abortion
was still legal, the pro-life movement would have lost the battle, and
the pro-abortion “rights” advocates would have won. As such, every
pro-life measure that seeks merely to chip-away at the number of
abortions, while not asserting definitively that abortion is no such
right, is a losing measure.
Parental-consent measures suggest that abortion is a right of every
person, but one that may not be asserted by a youth without having met
certain requirements. Partial-birth abortion bans suggest that abortion
is a right, but it should not be done so distastefully, even if this
form of abortion is most comfortable for the baby-victim. (Saline
abortions pickle a child for hours; the D/C abortion chops the baby up
while alive; whereas partial-birth abortions deliver the baby 2/3 of
the way and instantaneously kills him.) Seeking a Constitutional
Amendment declaring abortion illegal concedes a ground I am not willing
to concede: that presently, abortion is legal. The above measures, or
any other regulatory means of minimizing abortion, precariously chips
away at the foundation of Law. As Samuel Rutherford wrote, “God’s law
doth not regulate a non-ens, a mere nothing, or an unlawful power.”
Regulating abortion concedes its legality – prohibiting abortion denies
We have nearly 1,000 years of English Common Law history, let alone the
6,000 years of Biblical Law history, that reveal that Law exists apart
from mankind, and it is man’s duty to discover the Law and then
faithfully to execute it. The “legal” things that men do apart from the
Law are, as St. Paul called them, vain imaginations. Early Christians
understood that the legality of Rome did not make abortion “lawful.”
Our Constitution’s Supremacy Clause is recognition that “legal” and
“Lawful” are different terms. Only those laws passed in accordance with
the Constitution become the Supreme Laws of the Land.
The Path to Victory – The Interposition Solution
What does this jurisprudential history hold concerning abortion? The
church does not have power over life or death. The early church did,
however, make the penance for having an abortion life-long, indicating
that abortion was equivalent to murder. John Calvin wrote, under his
commentary on Thou shalt not kill, “the fœtus, though enclosed in the
womb of its mother, is already a human being, (homo,) and it is almost
a monstrous crime to rob it of the life which it has not yet begun to
enjoy.” Blackstone demonstrated that under Common Law that “life is
the immediate gift of God, a right inherent by nature in every
individual. … For if a woman is quick with child, and by a potion or
otherwise killeth it in her womb; or if anyone beat her, whereby the
child dieth in her body, and she is delivered a dead child; though this
is not murder, was by the ancient law homicide or manslaughter.”
Additionally, “the punishment of a pregnant woman condemned shall be
deferred until after her delivery.” While Common Law required in
each of the above instances that the child be quickened, Biblical Law
facially makes no distinction in Exodus 21:18-19. It must be under the
authority of this revealed Law that we seek to end abortion.
It is the duty of all governments to properly discover and
administer the Law, for the “legislature in all … cases acts only …
in subordination to the great lawgiver, transcribing and punishing His
precepts.” What happens, then, if a state government has properly
administered the Law, but the federal government declares such
administration to be unconstitutional? The answer is found in the
Doctrine of Interposition.
The Doctrine of Interposition has not been widely written on, so I am
forced to rely on unpublished analysis as well as some older and/or
obscure texts to those who are not likely to read a magazine such
as this. Simply, “Interposition is an official act on the part of a
State government to question the constitutionality of a policy
established by the central government.” Our federal government is
one of checks and balances; the Executive veto and the Court check the
legislature’s actions for constitutionality. Likewise, the Legislature
and the Court check the President’s actions. But who checks the Court?
“The right to challenge any usurpation of power on the part of the
Supreme Court must by lack of alternative, if for no other reason,
devolve upon the States.” What does the Tenth Amendment mean if not
that a State can interpose itself as a legitimate determiner of the
Constitution to which it is a consenting party? Once a contract is
formed, both parties have the right to ensure the proper enforcement of
the terms of the contract and are not bound by the illegitimate
breaches of that contract, absent a waiver.
At the turn of the 18th century, in response to the Alien &
Sedition Acts, Jefferson and Madison, through the Kentucky and Virginia
Resolutions respectively, declared that the U.S. Constitution defined
and limited the powers of the federal government, and “in case of
deliberate, palpable and dangerous exercise of other powers not granted
by the said compact, the states who are parties thereto, have the
right, and are in duty bound, to interpose for arresting the progress
of evil.” As co-parties to the Constitution, if the federal
government breaches the contract, the states have an unquestionable
right to determine a breach. As Samuel Rutherford wrote, “The law
permitteth the bestower of a benefit to interpret his own mind in the
bestowing of the benefit.” Kentucky reasoned correctly, that a
federal government that exclusively held the power to determine its own
limits would “stop nothing short of despotism; since the discretion of
those who administer the government, and not the constitution, would be
the measure of their powers.”
Article III of the U.S. Constitution, which established and governs the
courts, is the shortest of the first three articles establishing and
granting powers to the United States government. There is a clue there.
Further, while it is unconstitutional to diminish the salary of judges
while they hold their office, it is entirely constitutional for the
Congress to strip the Supreme Court down to one member, namely a Chief
Justice, or to further limit the jurisdiction of the courts, as
suggested by Chief Justice Roy Moore of Alabama in his proposed
Constitution Restoration Act.
Is a Supreme Court decision “law of the land?” The delegates to the
Constitutional Convention limited the “Supreme Laws of the Land” to the
Constitution first and subsequent “Laws of the United States made in
Pursuance thereof,” Art. VI, § 2. Court orders are conspicuously
from the Supremacy Clause. If “all laws which are repugnant to the
Constitution are null and void,” Marbury v. Madison, 5 U.S. 137 (1801)
at 176-177, how much more so judicial orders? The “judiciary of the
United States are not the masters of the Constitution but merely its
interpreters.” Precariously absent from the decision in Roe v. Wade
was Constitutional authority. The individual concept of “privacy” is
neither in the Constitution nor the Bill of Rights. By allowing the
judiciary to place “privacy” into the “penumbras of the Bill of Rights”
(both alien concepts to our limited Constitutional republic) we
have permitted “those who administer the general government … to
transgress the limits fixed by that compact.” As Jefferson warned, the
Court will “stop nothing short of despotism.” Perhaps it will be an
oligarchy consisting of 9 men in dresses, but it will nonetheless cease
to be the federal republic as set up in 1787.
Does Article III of the Constitution confer subject matter or original
jurisdiction to the Supreme Court over the definition of human life? If
not, is not Roe v. Wade a “dangerous exercise of … powers not
granted” to the Courts by the Constitution? It was in recognition
of this duty to interpose which caused Thomas Jefferson to write in the
Kentucky Resolutions, also in response to the Alien & Sedition
Acts, “[I]f those who administer the general government be permitted to
transgress the limits fixed by the compact, by a total disregard to the
special delegations of power therein contained, annihilation of the
state governments, and the erection upon their ruins, of a general
consolidated government, will be the inevitable consequence.” Can
we reasonably argue that, through the imposition of the Articles of
Incorporation, our state governments are sovereign entities? As Patrick
J. Buchanan wrote, “Using the incorporation clause of the Fourteenth
Amendment, the Court asserted a right to impose on the states all the
restrictions the Constitution has imposed on Congress. At that point …
the states of the Union became subject provinces of the Supreme
Court.” But Jefferson argued that the “states who formed that
instrument, being sovereign and independent, have the unquestionable
right to judge its infraction; and that a nullification, by those
sovereignties, of all unauthorized acts done under colour of that
instrument, is the rightful remedy.” Where have all the
The Virginia and Kentucky Resolutions were in response to procedurally
sound, but unconstitutional, Executive and Legislative action. But what
can be done against procedurally sound acts, but unconstitutional acts
of the Judiciary? Pro-lifers like to make a comparison between the Dred
Scott decision and Roe v. Wade to demonstrate the fallibility of the
Supreme Court. Why not use the same tactics to overcome the pernicious
Roe decision as did 22 states after Dred Scott? Wisconsin “denounced
the Supreme Court for ‘assumption of power’ and declared ‘that the
several States … have the unquestionable right’ to exercise ‘positive
defiance’ in behalf of their interpretation of the powers reserved to
the States by the Constitution.” It has been more than 30 years and
over 43 million puréed babies, and not one state out of fifty
interposed itself between the general government in Washington and a
struggling life in the womb. The states have neglected their duties for
30 years; nonetheless, they are duty-bound to interpose to arrest the
evil of abortion.
A Constitutionally-minded state’s Attorney General could open-up his
copy of the state’s laws, pull out the statutes still on the books
declaring abortion illegal and prosecute, interposing himself between
the Federal government and the unborn person he is trying to
protect. Absent an abortion law, is not a personal service contract
to terminate a life (called a “hit” when the mark is born) homicide or
manslaughter under Common Law, if not statute? A governor could
pronounce that the shield of Justice will extend into the womb, unborn
children will be protected against the enforceability of such illegal
contracts and that he will call upon the Attorney General to prosecute
the murdering abortionist and the people who consorted to have the
unborn child “hit” under accomplice liability theory.
One aspect of Interposition which is not well-known (if it can be said
that the former aspect was well-known) is that Interposition goes both
ways. What would be the effect if a state declared murder legal? Such a
law would be most likely a violation of that state’s constitution, but
it certainly is the foundational premise fostered in the July 4, 1776,
Unanimous Declaration, that to secure the unalienable right to life,
governments are instituted among men.
The U.S. Constitution guarantees to each state a “Republican form of
Government.” Can it really be said that a state that refuses to
prosecute murder is a republican government and is adherent to the
organic law of the Unanimous Declaration? If that state government is
non-republican, Madison argued that the Federal government could
interpose itself between the states citizens and the state without
denying Article IV, § 4 of the U.S. Constitution. See Federalist
(6). If they had the temerity, either the President or the Congress
could recognize that America’s charter declared that men are “endowed
by their Creator with certain unalienable” and self-evident rights,
including the right to life. The Preamble to the U.S. Constitution
states that such rights and liberties are secured for “our posterity,”
which means the following generations as yet unborn. The President, or
the Congress, can declare that Justice will extend into the womb and
that a refusal to prosecute murder is the epitome of denying justice
and a willful breach of the federal compact, and stand between the
state protecting the abortionist and the baby.
Interposition, Not Secession
One great objection to the Doctrine of Interposition comes from an
anti-secessionist group which fears that the Union necessarily must be
undone if a governor interposes himself between his state’s citizens
and the federal government. Let us not forget, the Virginia and
Kentucky Resolutions and the refusal to recognize the Alien &
Sedition Acts as Supreme Law of the land did not fracture the Union.
Jefferson wrote “to secure these rights, Governments are instituted
among men” and “whenever any Form of Government becomes destructive of
these ends, it is the Right of the People to alter or abolish it.” Let
us also heed Jefferson’s and Madison’s advice from the Kentucky and
Virginia Resolutions. Virginia expressed “its deep regret, that a
spirit in sundry instances, been manifested by the federal government,
to enlarge its powers by forced constructions of the constitutional
charter” as well as its “warm attachment to the Union of the States.”
Kentucky considered the federal union to be “conducive to the liberty
and happiness of the several states,” and that it would be “among the
last to seeks its dissolution.” It is with respect to the Union and the
Constitution that the Doctrine of Interposition can be offered.
Interposition concedes no argument that “abortion is legal,” or that we
have to wait for a pro-life Judiciary or a Constitutional Amendment
while allowing 4000 babies to get butchered daily. Interposition allows
the principles of the Constitution to be obeyed without conceding
validity to the Articles of Selective Incorporation. Simply,
Interposition declares that the terms of the Constitution ought to be
obeyed. Interposition is not Secession – it is sound contract theory
that requires both parties, the Federal and the State, to obey the
terms of the contract.
In fact, we can agree with Jefferson, who wrote, “[Virginia] would,
indeed, consider such a rupture [of the union] as among the greatest
calamities which would befall them; but not the greatest. There is yet
one greater, submission to a government of unlimited powers.” As
the Declaration demonstrates, “Prudence … will dictate that Governments
long established should not be changed for light and transient causes.”
What if the Courts refuse our plea? Is the un-prosecuted murder of over
43 million babies a light and transient cause? The time is closing
before we can no longer rein in the judicial, the executive and
legislative branches, state and federal, of civil government. Before
long it will be a “long train of abuses and usurpations” which gives
rise to our “duty to throw off such Government.” Our personal,
individual duty has not yet arisen, since as of late, no state has even
attempted to stand between the butcher and the baby.
 Carol Everett, What I Saw in the Abortion Industry, Easton
Publishing Company (1988)
 Samuel Rutherford, Lex, Rex; or The Law and the Prince, Sprinkle
Publications, 7 (1982)
 R.J. Rushdoony, Rushdoony on Abortion: Distant Early Warning,
Institute for Christian Economics, 11 (1989).
 John Calvin, Calvin’s Commentaries, vol. III, Baker Book House,
 Sir William Blackstone, Commentaries on the Laws of England, vol.
I, 129 (1765).
 Blackstone, op. cit, at vol IV, 395.
 Ultimately, there are only three forms of government: democratic,
aristocratic and monarchical. The glory of the civil governments in
these united States is that they appropriately melded the benefits,
thereby mitigating the detriments, of each of them. See Blackstone, op.
cit., vol. I, 49.
 Romans 13
 Blackstone, op. cit., vol. I, 54.
 Herbert W. Titus, “Ending ‘Legal’ Abortion,” paper, The First 100
Ways presented to the Board of Trustees of the Conservative Caucus
Foundation, January 13, 1997.
 Felix Morley, Freedom and Federalism, Liberty Fund, Inc., Indiana
(1981) at ch. 15; James McClellan, Liberty, Order and Justice: An
Introduction to the Constitutional Principles of American Government,
Liberty Fund, Inc., Indiana (2000) at 493.
 Morley, op. cit, 240.
 Morley, op. cit, 241.
 Virginia Resolutions in General Assembly, para. 2, December 24,
1798. (emphasis added)
 Kentucky Resolutions in General Assembly, para. 4. December 3, 1799
 Rutherford, op. cit., 60.
 Kentucky Resolutions, para. 4.
 McClellan, op. cit., 506-507
 Viscount Bryce, The American Commonwealth, as quoted in Morely at
 United States Constitution, Tenth Amendment
 Kentucky Resolutions in General Assembly, December 3, 1799.
 Virginia Resolutions, para. 2.
 Kentucky Resolutions, para. 4.
 Patrick J. Buchanan, The Death of the West, Thomas Dunne Books,
St. Martin’s Press, New York, 2002, p. 183.
 James F. Kilpatrick, The Sovereign States, Henry Regnery Co.,
Chicago, 1957 pp. 269-270 as quoted in Morley at 245.
 Titus, “Ending ‘Legal’ Abortion.”
 Thomas Jefferson, Draft Declaration in Protest of the Commonwealth
of Virginia on the Principles of the Constitution of the United States
and on the violation of them. December 1825.
Contact: Scott T. Whiteman, Esq.
The American View
The IFRL is the largest grassroots pro-life organization in
Illinois. A non-profit organization, that serves as the state
coordinating body for local pro-life chapters representing thousands of
Illinois citizens working to restore respect for all human life in our
society. The IFRL is composed of people of different political
persuasions, various faiths and diverse economic, social and ethnic
backgrounds. Since 1973 the Illinois Federation for Right to Life has
been working to end abortion and restore legal protection to those members of the
human family who are threatened by abortion, infanticide and euthanasia. Diverse though we are, we hold one common belief - that
every human being has an inalienable right to life that is precious and must be protected. IFRL is
dedicated to restoring the right to life to the unborn, and protection
for the disabled and the elderly. Click here to learn more about the IFRL.