Jeff Sessions Should Not Think of Roe v. Wade as ‘the Law of the Land’

In responding to Sen. Dianne Feinstein’s abortion-related line of questioning on the first day of his Senate Judiciary Committee confirmation hearing to become the next Attorney General of the United States, Sen. Jeff Sessions condemned the constitutional and human rights atrocity known as Roe v. Wade. Good for him. Just as importantly, however, Sessions also conceded that he views Roe as “the law of the land”:

“I believe it is a violation of the Constitution, and really an attempt to set policy and not follow law,” Sessions explained. However, “It is the law of the land; it has been so established and settled for quite a long time, and it deserves respect, and I would respect it and follow it.”

Most mainstream media commentary on Sessions’ statement has focused on the Alabama senator’s repudiation of Roe on its Fourteenth Amendment constitutional merits. Certainly, Sessions is indubitably correct in his harsh criticism of the farcical legal logic that Justice Harry Blackmun employed in 1973’s Roe decision. As Sessions’ friend and fellow Alabamian, Judge Bill Pryor of the U.S. Court of the Appeals for the Eleventh Circuit (whom I have endorsed for Trump’s first U.S. Supreme Court nomination), has said, Roe surely gives Dred Scott stiff competition for the title of “the worst abomination in the history of constitutional law.” The Acela corridor media, composed almost exclusively of partisan Democrats zealously committed to the prenatal infanticide legal apparatus installed by Roe, have naturally reacted in horror to Sessions having the temerity to speak truth to Feinstein.

But, counter-intuitively, it is actually the latter portion of Sessions’ statement that is more crucial. Jeff Sessions, who will soon be the chief law enforcement officer representing one-third of the federal government, should not think of Roe v. Wade—or its misbegotten progeny, such as 1992’s Planned Parenthood v. Casey or last term’s Whole Women’s Health v. Hellerstedt—as being the unchallengeable “law of the land.”

Contrary to popular belief, the Constitution’s Framers did not bestow upon Article III’s federal judiciary—the “least dangerous branch,” as Alexander Hamilton memorably dubbed it in The Federalist No. 78—with anything remotely resembling the final ability to definitively settle constitutional disputes not merely as ad hoc judgments affecting litigants to a particular suit, but also as binding legal principle to be forcibly thrust upon the national populace. Marbury v. Madison, the landmark 1803 ruling frequently cited as bestowing the judiciary with this final interpretive power, did no such thing; in fact, as my friend Daniel Horowitz of Conservative Review has recently explained and I expounded upon in a law school paper, the Marbury decision actually intrinsically refutes such a judicial supremacist notion. The U.S. Supreme Court never even implied such a final interpretive power until non-binding dicta in 1859’s Ableman v. Booth, and did not purport to usurp the power in a binding manner until the 1958 self-aggrandizement that was Cooper v. Aaron.

Such opposition to this notion of 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.”

Perhaps the most famous opponent of judicial supremacy in our nation’s history was Abraham Lincoln. As I wrote last June:

…one of the particular means Lincoln invoked to achieve his [pro-Union, anti-slavery] ends was a relentless assault on the legitimacy of the U.S. Supreme Court to not merely render idiosyncratic judgments as it pertains to the litigants in the suit properly before it, but to authoritatively settle political issues for the broader republic. In his famous 1858 debates with Stephen Douglas, Lincoln repeatedly rejected this fallacious doctrine of judicial supremacy and, concomitantly, the validity of Chief Justice Roger Taney’s monstrously inhumane decision the year prior, in Dred Scott v. Sandford; it was Douglas who was forced to resort to majoritarian pleas for “popular sovereignty” and “the will of the people” in the western territories, and who repeatedly slandered Lincoln as being dangerous and lawless.”

Upon his ascendance to the presidency in 1860, Lincoln found himself able to effectuate his departmentalist, anti-judicial supremacist convictions into decisive action. The Great Emancipator wasted little time, memorably crystallizing his stalwart opposition to judicial supremacy in his First Inaugural Address:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

The Republican Party, founded in the mid-1850s to oppose the “twin relics of barbarism”—by which the Party’s founders meant slavery and polygamy—and soon thereafter brought to national prominence with the election of President Lincoln, should now commit to honoring its roots. Jeff Sessions, a Republican, will soon be the chief law enforcement officer of Article II’s Executive Branch. It is erroneous for Sessions to reflexively defer to the federal judiciary in all constitutional disputes and blindly abide by its rulings not as idiosyncratic judgments affecting specific litigants, but as purporting to bind all Americans via broader political principle. It is even more erroneous for Sessions to claim to do so, as he did last week, when the underlying legal dispute in Roe v. Wade—a decision which, due to both its horrendous abuse of the (anti-textual) “substantive due process” constitutional doctrine and its flagrantly immoral subjugation of an entire class of human beings to sub-human status—so closely mirrors the underlying Supreme Court ukase that Lincoln so boldly and defiantly rejected in Dred Scott. Here was Princeton University’s iconic Professor Robert P. George, writing last year in First Things on the anniversary of Roe:

Lincoln refused to treat an abusive and anti-constitutional edict of the Supreme Court as “the law of the land.” We would do well to emulate him, lest we (to use his words) “practically resign [our] government into the hands of that eminent tribunal.” Lincoln saw something that we must not fail to perceive today, namely, that what is at stake in a case like Dred Scott v. Sandford (and Roe v Wade) is not only the moral principle of the inherent and equal dignity of each and every member of the human family—the principle of the Declaration—but also the principle of republican government: government of the people BY and FOR the people.

In standing defiantly against the fundamentally lawless holding in Roe, and by insisting that those who aspire to high political office do likewise if they wish to have our votes, we are standing BOTH for the unborn and their human rights AND for constitutional self-government—the form of government that Benjamin Franklin famously said he and his fellow Founders had given us…“if you can keep it.”

Soon-to-be President Trump, acting through soon-to-be Attorney General Sessions and his broader Article II Executive Branch law enforcement infrastructure, would now do well to follow Lincoln’s example. The Executive Branch, much like the Congress, possesses an independent power—distinct from the diktats of the nine robed oracles sitting at 1 First St NE—to interpret and apply the Constitution for itself. Sessions, a man (absurdly) reviled by the Left for being a white Southerner with a heavy accent harboring alleged racist sentiment, can symbolically redeem himself by reversing course from his answer last week to Feinstein and vowing to side with no more towering American historical figure than the Great Emancipator himself. In standing with the Founders, Lincoln, and the unborn alike by pledging to refuse to enforce Roe and its progeny as binding legal precedent—and thereby opposing the fallacious doctrine of judicial supremacy—Trump and Sessions would find themselves, as the Left might phrase it, on “the right side of history.”