The great abolitionist Frederick Douglass said that one of the obstacles to ending slavery was the “heresy” that “slavery will be abolished just when the Lord shall will its abolition.” As Douglass predicted, this complacent attitude only delayed slavery’s end and needlessly extended the suffering of millions of people.
“It is a delusion and a snare, to think that Almighty God will undertake for us any farther than we undertake for ourselves. His work is done: ours alone remains to be done,” advised Douglass in The Liberator (1847). “When a slave, I used to pray that the Lord would give me freedom,” he recollected. “And I might have prayed in slavery until this time, had I not ‘prayed with my heels.’”
He added, “Our works must be consistent with our prayers, otherwise they are an abomination before God.” This conviction gave Douglass the courage to escape.
As a public speaker, Frederick Douglass drew from experience to awaken slumbering Americans to fight for immediate abolition. He pointed to the errors and successes of Great Britain. Men of influence, even William Wilberforce, once thought that immediate emancipation was impractical or undesirable. “It would be wrong to emancipate,” said Wilberforce of slaves in 1807, the same year he led Parliament in banning the commercial slave trade. “To grant freedom to them immediately would be to insure not only their masters’ ruin, but their own. They must be trained and educated for freedom.”
Wilberforce later abandoned these assumptions, and went on to sponsor the Slavery Abolition Act to outlaw slavery everywhere in the British Empire. A version of the Act was approved by the House of Lords on August 28, 1833, a few weeks after Wilberforce was buried.
Douglass spoke of Britain’s change to immediatism:
“What ought to be done, can be done,” was the rallying cry that, according to Frederick Douglass, worked. He hoped the same attitude would inspire friends of liberty in our country to reject incrementalism and bring slavery to an immediate halt. Only appeals to righteous action—not half-way, toothless measures—have the power to stir souls against atrocity and abuse.
The nearest atrocity to slavery in modern times is abortion. With Roe v. Wade in 1973, human rights were surrendered to the judges, who ruled that “no case could be cited that holds that a fetus is a person.” The American people accepted Roe as law, judicial supremacy was normalized, and tens of millions of babies died—thousands per day, even to the present time.
In addition to waiting for God to do our work, as in Frederick Douglass’ account, the pro-life cause prayed the judiciary would end abortion: “abortion will be abolished just when the Supreme Court shall will its abolition.”
Pro-life groups molded their activism around projections and incremental stratagems. Republicans produced weak legislation that did not challenge Roe, but nestled comfortably in its devastating inequality—and they called it progress.
“It would be wrong to assert that the child has the right to live,” became the unspoken mental excuse of some leaders in the cause. Perhaps, “one day,” immediatist legislation can be tried, at some afar off date, but “the Court’s just not ready,” pro-life leaders shrugged, as they bowed to judicial activism.
These rationalizations are misplaced. We have a republic, not a judicial oligarchy. Every officer of government is sworn to uphold the U.S. Constitution, not court opinion, and that means applying checks and balances and providing equal protection as the supreme law requires. But rather than compliance with American law and its basis, the focus of pro-life strategists has been baseless, incremental legislation with no equality and no teeth—as everyone waits for the courts to do what states would not.
Erroneous doctrines remain a self-imposed impediment. American abortion has not ended, after decades of diversion—not because the prospect is impossible, but because the standard of human rights has been ignored by its friends, and the proper, constitutional means have sat on parchment, collecting dust.
Frederick Douglass urged the American people to apply the nation’s foundational principles to end slavery:
Slavery was incompatible with our assertion that “all men are created equal” and “endowed by their Creator with certain, unalienable rights.” Abortion buries these basic truths with the same hypocrisy that made our nation a slave-holding contradiction. Faithfulness to our nation’s saving principles—nothing less—is the only answer, to swiftly end the slaughter of America’s babies, and shine the guiding light of the Declaration again to the world.
But sadly, that’s not what happened in Dobbs v. Jackson (2022). Although touted as a pro-life victory, the Dobbs decision does nothing to protect children, and only furthers the gravest mistake of Roe v. Wade: the exclusion of unborn persons from constitutional protection.
The Court decided in Dobbs to “allow” each state to “regulate abortion as its citizens wish,” while retaining an assumed power to ultimately decide the question.
In his concurring opinion, Justice Brett Kavanaugh dehumanized the child as nothing greater than economic policy, and seemed unaware that the Constitution requires states to protect life: “On the question of abortion, the Constitution is . . . neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.” (Concurring, Dobbs v. Jackson, 2022)
Kavanaugh attempted to establish the Constitution as indifferent, yet anti-child.
“The issue before this Court, however, is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The text of the Constitution does not refer to or encompass abortion,” he wrote, even though abortion is simply a type of murder, and murder is prohibited in all its imaginable (yet unnamed) forms. Had the justices truly weighed the realities of abortion, they would see that abortion is an especially “cruel and unusual punishment” that violates the equal protection clause and denies due process to a victimized unborn person.
Some members of the Supreme Court have inverted the Constitution’s meaning when observing the absence of the words “abortion” and “unborn” in the text. Justice Antonin Scalia was one who got the doctrine of enumeration backwards, and taught a generation of acolytes to view the Ninth Amendment with suspicion. Yet the Ninth Amendment is clear that the absence of a word is no basis for denying human rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The lack of an adjective does not remove an “unborn” person’s life from protection. The Fourteenth Amendment simply requires equal protection for “all persons” within the jurisdiction of a state.
Scalia’s and Kavanaugh’s faulty view of enumeration is easily solved by a realization that the Ninth Amendment, and the entire Constitution for that matter, is defined by its codified statement of purpose: the preamble.
Frederick Douglass put it best when he argued the Constitution was sufficient to end slavery, even before explicit mention was created by the Thirteenth Amendment. The basis for his insight was that the Constitution must be judged by its written text and by its stated intentions—namely, the interpretive text we call the preamble:
“Interpreted as it ought to be interpreted,” said Douglass, “the Constitution is a GLORIOUS LIBERTY DOCUMENT. Read its preamble, consider its purposes. Is slavery among them?”
Or, is abortion among them? No. Are babies explicitly excluded from protection? No. The Constitution—intended to establish justice, insure domestic tranquility, provide for the common defense, all in united fashion for ourselves and our posterity—has no baby-killing agenda.
At the outset, the document states in undeniable terms that its purpose is to bless posterity: our nation’s children. Every clause expresses that warm affection. The founders knew that fully establishing justice was a future gift to be enjoyed by future generations—if previous generations would stay the course.
But if the Constitution was intended to destroy posterity, to spill the blood of tiny babies, to forfeit the life of the most vulnerable child, to make Americans into selfish brutes who curse and kill their children, the document would have left no doubt of it.
“Be it remembered that the Constitution nowhere forbids a colored man to vote,” said Douglass in 1860. Likewise, be it remembered that the Constitution nowhere forbids a child to live.
Interpreted as it ought to be interpreted, the Constitution is a glorious life-protecting document.
Our regretful error has been in mistaking the opinions of judges for law, and embracing tepid gradualism in place of right. Predictably, the anti-abortion cause has languished in confusion. We have ignored the unalienable right to life, articulated by the Declaration of Independence as beginning at creation, and guaranteed by the Constitution to “ourselves and our posterity.”
Rather than pray with their feet, pro-lifers now stand flat-footed in the face of Dobbs v. Jackson, which failed to recognize the unborn person as protected by the Fourteenth Amendment. The decision only energizes pro-abortion forces to work harder.
No matter the praise of conservatives, Dobbs in reality tossed the right to life to the democratic lions to “regulate.” But no human entity has the power to determine when or how a child’s life is worthy or unworthy of protection. Our system requires justice for posterity, no matter the Supreme Court’s contortions. U.S. law is not made in the courtroom, nor are human rights created by democratic choice.
Frederick Douglass demonstrated that the American form of government contrasts with Great Britain’s system, which relies on court precedent (case law) to settle modern problems by old conventions. The British system has no written constitution, so its precedent is law. The United States, on the other hand, has a written Constitution that binds all of government to its purposes, and cedes no lawmaking power to the courts:
“I repeat,” said Douglass, “the paper itself, and only the paper itself, with its own plainly-written purposes, is the Constitution.”
In his Senate confirmation hearing, Trump appointee Neil Gorsuch pledged to respect “the law of the land.” But he defined that as court precedent. He forgot to read his Constitution: “the law of the land” that Gorsuch swore to uphold is not Supreme Court opinions.
Gorsuch swore allegiance to the Constitution, and to the impartial administration of justice. Articles I and II make clear that courts are not empowered with the ability to create or to apply “case law.” (As in Great Britain.) No judicial oath imposes allegiance to court opinions, nor does any American convention allow court precedent to be treated as “the law of the land.” The U.S. Constitution has that supreme title, and it does not countenance the taking of innocent human life, only its protection.
Above other governments in recorded history, our government was dedicated to the loftiest and purest of purposes. Ours was made to defend the defenseless, and to secure a blessed land for our children. Ours was not designed to create a nation of baby-killing barbarians. Ours was not designed to make us captives of courts. Unlike nations that came before, our government belongs in our hands, with a written constitution that justly secures the God-given rights of all.
After decades of American toleration of abortion, it is time we learn from the past and reject the insipid, compromised delays of failed “pro-life” strategies. As with the original abolitionists, we must awaken to the right of the child to be protected, and to the immediate duty of every branch of government to provide equal protection.
Let us pray for providential aid. But duty is ours to pray with our feet for the little babies and seek justice on their behalf. We must ceaselessly demand that all elected officials—state and federal—uphold their oath to the Constitution, enforce equal protection for posterity, and stop making laws that fall short. No more pro-life half-measures or anti-child legislation. Equally protect the weakest among us.
It’s the purpose of government.
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