So the great state of Alabama has officially passed the strongest pro-life bill in the country. The bill, which bans all abortions except for those deemed truly necessary to save the life of the mother, now awaits Republican Gov. Kay Ivey’s signature. The bill contains no exceptions for pregnancies resultant from rape or incest, and has already induced a general state of meltdown from large swaths of the rabidly pro-abortion cultural Left.
Let us first state the obvious, from a pro-life perspective: Good for Alabama.
But what is particularly interesting about the Alabama bill is that, by the lead draftsperson’s own admission, it is designed as a direct legal challenge to the constitutional travesties and moral abominations that are 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey.
“This year after much discussion, prayer and thought as a caucus, we decided we would have one pro-life bill, and we’ll try to make one that counts,” explained State Rep. Terri Collins (R-Decatur), according to Yellowhammer News. “We aimed for language that addresses the language of Roe v. Wade. The decision was based on someone in utero, someone pregnant so we don’t get into conception.”
Let us make a blanket assertion that Roe and Casey are wholly fabricated, legally erroneous decisions that concocted and augmented a so-called constitutional “right” to murder an innocent fellow biological member of the homo sapiens species. As left-leaning constitutional law scholar John Hart Ely once famously said of Roe, it “is not constitutional law and gives almost no sense of an obligation to try to be.” It is possible that, until (Republican judicial nominee) Justice Anthony Kennedy came along in 2015’s Obergefell v. Hodges, that there was never a more hubristic, risible, and constitutionally vacuous black-robed naked power grab than what (Republican judicial nominee) Justice Harry Blackmun regurgitated in the kid-killing Roe diktat.
The higher-level question, instead, is this: Is the Alabama legislature justified to pass a state-level piece of legislation that expressly “defies” and sets in its crosshairs an erroneously decided U.S. Supreme Court ruling?
The answer to this question is simple: Yes. But it is important to explain why.
The legislators of the State of Alabama take an oath to (amongst other things) “support the Constitution of the United States” — not to support the Constitution as it is egregiously misinterpreted, as happened in Roe and Casey, by a majority of the lawyers on the U.S. Supreme Court. Such political tugs-of-wars between the federal government’s branches, and indeed as between federal and state governments, is how the ultimate question of who interprets the Constitution has historically been settled. There is nothing at all inherently wrong with passing legislation that violates current U.S. Supreme Court precedent, so long as fellow constitutional actors — here, Alabama state legislators — earnestly believe they are acting soundly within the confines of the Constitution as they independently construe it, in accordance with their oaths of office.
Judicial supremacy — the fallacious notion that the constitutional prognostications of a bare majority of the U.S. Supreme Court are equated with the Constitution itself and thus trigger Article VI’s Supremacy Clause — is textually and structurally specious. As I have explained numerous times for The Daily Wire, it is simply not the system that the Constitution’s Framers devised. In fact, two and a half years ago, I explained why then-Attorney General Jeff Sessions should also not think of Roe v. Wade as the much-ballyhooed “law of the land”:
[O]pposition to … judicial supremacy was commonly understood by the Founding generation. James Madison, in describing the tripartite separation of powers construct he helped codify in the Constitution, wrote in The Federalist No. 49 that “[t]he several departments being perfectly coordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” Thomas Jefferson, moreover, wrote in an 1804 letter to Abigail Adams that “[to] give[ ] to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch.”
But it is the textual nature of the oath of office itself — by which Alabama state legislators swear to “support” the written text of “the Constitution of the United States” — that is so important. Here is how constitutional law scholar Michael Stokes Paulsen phrased it at National Review last year:
[T]he Constitution specifies that “this Constitution” — the written text — is binding on judges and all other government officials. Right after designating the Constitution supreme law, Article VI provides that “the Judges in every State shall be bound thereby.” It further specifies that all federal and state officers, of every branch, “shall be bound by Oath or Affirmation, to support this Constitution.” All who exercise authority under the Constitution’s auspices swear an oath of fidelity to abide by the supremacy and binding nature of the Constitution’s text.
Yes, that includes “all … state officers, of every branch.” And it is “the Constitution’s text” — not a judicial (mis)interpretation of that text — that binds constitutional actors who swear such an oath.
It is erroneous to think of an idiosyncratic (let alone wrongly decided) Supreme Court edict, such as Roe, as the “law of the land” which is binding on all fellow constitutional actors. There is nothing in the Constitution’s text, structure, or original understanding to indicate that. And in fact, the Alabama state legislators’ oath of office emphatically contradicts that line of thought.
Assuming Gov. Ivey signs the bill into law, it will be interesting to follow its trajectory as it is inevitably appealed throughout the legal system. The U.S. Court of Appeals for the Eleventh Circuit, which has federal appellate jurisdiction over Alabama, is one of the more conservative circuit courts. Although, to be sure, I am skeptical that the Supreme Court would presently grant a writ of certiorari to hear the case.
Regardless, good for Alabama for standing up for unborn children and for sticking its thumb in the eye of judicial supremacy.