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Abortion
Federal vs. State Law

Kerry Morgan
See response below from Brian Carney, another lawyer

[COMMENT:  From an email in which Morgan responds to a query about state vs. fed. laws regarding abortion.  I agree, almost.  Brian Carney below has good points to make.  See my response under Carney's.    

Go to Kerry Morgan's website at http://www.revivetherepublic.com/pro-life_article.htm one of the best I have seen on a Biblical view of civil government, especially the strategy for winning the pro-life battle.  E. Fox]
 

Abortion has always been a function of state criminal law ever since the states began to recognize the offense and punish those who procure it (1860-1880).  This rule that it is a state matter does not come from God, but rather it is how the framers elected to organize the governments of this country.  The Declaration says that the people are free as a God-given right, to "organize [] its powers in such form as to them shall seem most likely to effect their safety and happiness . . . "  How did they organize the powers of the federal and state governments in such a way as to them seemed most likely to secure their safety and happiness (being legal shorthand for the certain "unalienable rights"?)

They said "Hey, lets give the national government only a little power over common objects and strictly define that power in Articles 1, 2 and 3 of the Constitution."  Everything else including basic criminal law stays with the states because the last thing we want is a national criminal code with national police and national jails.  All of the grievances listed in the Declaration were against such a national power. 

So that is the way it is set up.  Now over the years the Constitution was amended to take away some powers from the states and give it to the national government.  Slavery and voting among them.  Alcohol was a big deal too and a mistake from my view.  Yet, after the new deal the court began to solve problems by legislating from the bench and purported taking power from the states, not by amendment, but by opinion.  Abortion and sodomy are but two examples.  These transfers were and are lawless and unconstitutional. 

However, if the People want to take abortion from the states by a constitutional amendment and give it to the federal government and transfer the power to investigate abortion providers by federal marshals and try abortionist in a federal court and incarcerate them in a federal jail they may certainly do so.  But they should fist be persuaded that  such a reorganization of "its powers in such form" shall to them "seem most likely to effect their safety and happiness" i.e., better secure their "unalienable rights"

For me, and I drawn no rule here for another, I am loathe to give the federal government one mustard seed more of power.  The people must fight this out state by state.  In so doing their thinking will be drawn to the virtue of local self government, and to solving local matters locally and not fly toward the further expansion of federal power.  Yet, abortion is of the nature of slavery and deserves to be regarded among those rights a national power ought to protect, provided that the states have first shown themselves incapable of securing same.  My problem with this is one of timing.  The states have shown that they did  punish abortion until the Court wrongfully intervened.  I think that the states need to recover that authority first and then prove their worthiness.  If they fail by and large then nationalize the matter.

As far as why McCain says its a state matter . . . well, he says this because he wants the pro-life vote without any obligation to do anything about it.  He is either ignorant or a charlatan.  Here is the real option.  To move the matter to the states requires the President to say to his federal marshals, "Don't enforce a single federal judges order interfering with a states efforts to prosecute an abortionist in a state court because I as President and having Constitutional authority over my branch and you working for me, I have determined that the Court decision in Roe is unconstitutional and I will not be a party to such lawlessness.  Congress ought to come to the same conclusion and use its power to impeach Stevens, but I have no power over Congress in such matters and I leave that to them."  This is the promise which we should be eliciting from John McCain, and which our leadership should be eliciting.  But of course we do no such thing.  We let him off easy with a promise that he will support a pro-life amendment to the Constitution.  Sounds good except that the Constitution extends no power whatsoever to the President in regard to amendments.  So we fail to demand of McCain what is Constitutionally authorized and accept from him what is not, and claim we are doing the right thing!  Its even worse.  He says "I will appoint pro-lifers to the bench."  So we 1) fail to demand of McCain what is Constitutionally authorized and 2) accept from him what is not, and 3) are asked to vote for him based on a mere promise of what he might do in the future and which is not entirely within his power (as the Senate must ratify). Our leadership calls this savvy political action.  It is rather a call to join in league with a lawless man by suppressing our reason and the evidence.  

Comments are welcome.

Kerry 

Response from Brian Carney, Esq.

Kerry Morgan said:
The people must fight this out state by state.  In so doing their thinking will be drawn to the virtue of local self government, and to solving local matters locally and not fly toward the further expansion of federal power.  Yet, abortion is of the nature of slavery and deserves to be regarded among those rights a national power ought to protect, provided that the states have first shown themselves incapable of securing same.

With all due respect, the death of innocent children is not a local matter and there is no obligation to handle it locally.  It is a federally protected inalienable right.  It MUST be protected by the federal government. 

Promoting "the virtue of local self government" sounds nice, but the truth is
local self-government is no longer virtuous.  During the founding of our nation, people involved in local self government were God-fearing, honest and not corrupt (mostly).  Today, the exact opposite is true in many places.  Local self-government officials do not fear (much less believe in) God, are dishonest, and corrupt. 

As a result, we are under no theoretical obligation to wait to see how our local officials will handle the opportunity to protect innocent lives.  We already know in many places (e.g., Massachusetts) those innocent lives would have no chance at all. 

We do not have to wait, therefore, for the states to show that they are capable or not, the states have already shown that they are
incapable of securing the inalienable right to life. 

How many abortions would happen before we finally figured out what we already know.  There is a culture of death.  It has infiltrated our state legislatures.  Investigating whether the culture of death still exists, while innocent children die, is naive.  It is our duty to protect each innocent person's inalienable right to life, an obvious and federally protected right in my opinion.
Brian Carney, Esq.

Reply by E. Fox

Murder is not prosecuted by the federal courts, but by state courts, to keep the fed out of the state criminal justice systems.  As Kerry Morgan says, we do NOT want a federal criminal justice system, which government centralizers are doing their level best to sneak in on us (most of it via the Administrative State). 

But we can establish a constitutional Personhood Amendment which would govern state law as well as federal by defining the beginning of personhood at the beginning of life, i.e., at conception.  That would end legal abortion, for each preborn child would have the same protection of law as any born child or adult.  Criminal jurisdiction would still remain in the states. 

It would become a federal matter only if a law suit at the state level were appealed on grounds of violating the Constitution, I would think.  But the federal government would not have original jurisdiction over an abortion.  It would necessarily come up first as murder at the state level.    E. Fox   

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Date Posted -  09/12/2008   -   Date Last Edited - 09/15/2012